Catarino Jose Castillo v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00286-CR
CATARINO JOSE CASTILLO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 08-02613-CRF-85
MEMORANDUM OPINION
A jury found Catarino Jose Castillo guilty of aggravated assault on a public
servant, evading arrest with a vehicle, and possession of a controlled substance with
intent to deliver (one gram or more but less than four grams). The jury assessed his
punishment at thirty-five, three, and three years’ imprisonment, respectively, to run
concurrently. In four issues, Castillo appeals. We will affirm.
I. BACKGROUND
On the afternoon of September 2, 2007, several Bryan police officers responded to
a “shots-fired” call at Nicky’s Food Mart. When Officer Brady Rockett arrived in that
area of town, he began looking around to see if he could find the several vehicles that
had been described as possibly being involved in the shooting. As he was driving
down a street near Nicky’s, he noticed several cars in front of a house that he knew to
be associated with gang activity and where five to ten men were out in the front yard on
their cell phones. After passing the house, Officer Rockett turned around to go back
toward the house when he noticed a pearl-colored car with two occupants leave from in
front of the house. A pearl-colored car was one of the vehicles described as being
possibly involved in the shooting at Nicky’s.
Officer Rockett began following the car. Officer Derrick McKethon heard this on
his radio, pulled onto the street where they were traveling, stopped, and got out of his
car. As the pearl-colored car approached him, he could tell that the passenger in the
vehicle was not wearing his seatbelt, so he stopped the car. When the car stopped,
Officer McKethon approached the driver, told him why he was being stopped, and
asked for his driver’s license and insurance. He then asked the driver to step out of the
car. The driver complied, and he and Officer McKethon went to the side of the road in
front of the vehicle.
In the meantime, when the pearl-colored car pulled over, Officer Rockett pulled
in behind it and activated his car’s emergency lights. Officer Rockett then got out of his
car and approached the passenger’s side of the pearl-colored car. He asked the
passenger for his driver’s license/identification. The passenger complied, and Officer
Rockett identified him as Castillo. Officer Rockett then told Castillo to keep his hands
Castillo v. State Page 2
where he could see them and that he was “going to pull him out to perform a Terry
frisk.” Castillo remained seated. Officer Rockett then asked him if there were any
weapons in the car or on him. Officer Rockett believed that Castillo shook his head
“no,” but Castillo started getting extremely nervous. His hands were shaking, he was
sweating profusely, and his eyes darted back and forth.
Officer Stacy Nunn then approached the driver’s side of the car from behind.
Officer Rockett saw her and told her “10-zero,” which is a warning to use extreme
caution. At that point, Castillo turned his body toward the driver’s side of the car,
presumably to look toward Officer Nunn; however, this movement revealed to Officer
Rockett the butt of a pistol lying in Castillo’s lap. Officer Rockett immediately reached
through the car window and tried to gain control of Castillo’s hands. Officer Rockett
also yelled, “Gun. Gun. Gun.” When Officer Rockett grabbed for Castillo, Castillo
started pushing away from him and tried to move into the driver’s seat. As Castillo
was moving into the driver’s seat, the officers heard a small-caliber gunshot from
within the car. Officer Nunn then fired one shot at Castillo, and Officer McKethon fired
two shots at him, but Castillo was able to get into the driver’s seat and drive off. A
wounded Castillo was located shortly thereafter at a residence.
II. JURY CHARGE
In his first issue, Castillo contends that the trial court committed charge error (1)
by failing to include in the verdict form on Count One that the jury could find him “not
guilty” of the lesser-included offense of deadly conduct; (2) by providing a verdict form
on Count One that misstated that the lesser-included offense of deadly conduct was
Castillo v. State Page 3
alleged in Count One of the indictment; and (3) by providing “contradictory, vague,
and confusing” instructions. In analyzing a jury-charge issue, we first decide whether
error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
On Count One, the trial court instructed the jury on aggravated assault against a
public servant as well as the lesser-included offense of deadly conduct. After the
application paragraph dealing with aggravated assault against a public servant, the trial
court instructed the jury as follows: “If you do not so believe or if you have a
reasonable doubt thereof, you will find the defendant not guilty of aggravated assault
on a public servant; and you will proceed to consider whether the defendant is guilty of
the lesser-included offense of deadly conduct.” Then, after setting out the application
paragraph for the lesser-included offense of deadly conduct, the trial court instructed
the jury:
. . . If you do not so believe or if you have a reasonable doubt thereof, you
will find the defendant not guilty of any offense alleged in the indictment.
If you should find from the evidence beyond a reasonable doubt
that the defendant is guilty of either aggravated assault on a public
servant or deadly conduct but you have a reasonable doubt as to which
offense he is guilty, then you should resolve that doubt in the defendant’s
favor and find him guilty of the lesser offense of deadly conduct. If you
have a reasonable doubt as to whether the defendant is guilty of any
offense, then you should acquit the defendant and say by your verdict
“Not guilty.”
Finally, at the end of the jury charge, the trial court instructed the jury, “After you have
reached a unanimous verdict, the Presiding Juror will certify the verdict by completing
the appropriate form attached to this charge and signing it as Presiding Juror.” The
attached verdict form on Count One stated as follows:
Castillo v. State Page 4
We, the jury, find the defendant, CATARINO CASTILLO, GUILTY
of the offense of Aggravated Assault Against a Public Servant as alleged
in Count One of the indictment.
____________________________________
PRESIDING JUROR
We, the jury, find the defendant, CATARINO CASTILLO, GUILTY
of the lesser included offense of Deadly Conduct as alleged in Count One
of the indictment.
____________________________________
PRESIDING JUROR
We, the jury, find the defendant, CATARINO CASTILLO, NOT
GUILTY, of any offense alleged in Count One of the indictment.
____________________________________
PRESIDING JUROR
A. The Jury Instructions
Regarding the jury instructions for Count One, Castillo complains that the trial
court confused the jury by giving this instruction: “If you do not so believe or if you
have a reasonable doubt thereof, you will find the defendant not guilty of aggravated
assault on a public servant; and you will proceed to consider whether the defendant is
guilty of the lesser-included offense of deadly conduct.” Castillo complains that the
trial court then compounded the confusion by giving a “benefit of the doubt”
instruction:
If you should find from the evidence beyond a reasonable doubt that the
defendant is guilty of either aggravated assault on a public servant or
deadly conduct but you have a reasonable doubt as to which offense he is
guilty, then you should resolve that doubt in the defendant’s favor and
find him guilty of the lesser offense of deadly conduct.
Castillo argues that these instructions are contradictory, vague, and confusing because
Castillo v. State Page 5
they force the jury to believe that he could be guilty of both offenses, in which case the
jury would be required to find him guilty of the lesser-included offense.
A “benefit of the doubt” instruction has long been recognized in Texas law.
Barrios v. State, 283 S.W.3d 348, 352 (Tex. Crim. App. 2009) (citing Sparks v. State, 300
S.W. 938, 939 (Tex. Crim. App. 1927), Bussell v. State, 265 S.W. 164, 172 (Tex. Crim. App.
1924), Richardson v. State, 91 S.W. 218, 222-23 (Tex. Crim. App. 1922) (op. on reh’g), and
McCall v. State, 14 Tex. Ct. App. 353, 363 (1883)). As a general rule, if evidence in a case
leaves a reasonable doubt as to the grade or degree of the offense, upon a request by the
defendant, the trial court must give the jury a “benefit of the doubt” instruction.
Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi 1988, pet. ref’d). This
added instruction is given to clear up any confusion when the jury has no reasonable
doubt that the defendant committed an offense, but is uncertain about the grade or
degree of that offense. Id. Furthermore, in Barrios, the Court of Criminal Appeals
concluded that there was no error in a jury charge containing substantially similar
instructions. See Barrios, 283 S.W.3d at 349-53. We thus hold that submitting these
instructions in the charge was not error. See id.
B. The Verdict Form
We next consider Castillo’s complaints that the trial court committed charge error
by failing to include in the verdict form on Count One that the jury could find him “not
guilty” of the lesser-included offense of deadly conduct and by providing a verdict
form on Count One that misstated that the lesser-included offense of deadly conduct
was alleged in Count One of the indictment.
Castillo v. State Page 6
A trial court need not attach a verdict form to the jury charge, but if it does so, it
must set out every “guilty” or “not guilty” option that is available to the jury. Jennings
v. State, 302 S.W.3d 306, 310 (Tex. Crim. App. 2010). We assume without deciding that
the verdict form on Count One was erroneous.
Because Castillo did not object to the alleged error in the charge, however, it will
not result in reversal of his conviction in the absence of “egregious harm.” See id. at 311;
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). In
examining the record for egregious harm, we consider the entire jury charge, the state of
the evidence, the final arguments of the parties, and any other relevant information
revealed by the record of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex.
Crim. App. 2006). Jury charge error is egregiously harmful if it affects the very basis of
the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.
Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d
117, 121 (Tex. Crim. App. 2006).
Even though there was not a separate option in the verdict form on Count One
that allowed the jury to specifically find Castillo “not guilty” of the lesser-included
offense of deadly conduct, the “not guilty” option in the charge did state, “We, the jury,
find the defendant, CATARINO CASTILLO, NOT GUILTY, of any offense alleged in
Count One of the indictment.” (Emphasis added.) Thus, we are confident that the jury
understood that the “not guilty” option was a finding of “not guilty” on both the
charged offense of aggravated assault against a public servant and the lesser-included
offense of deadly conduct. Furthermore, the jury found Castillo guilty of the greater
Castillo v. State Page 7
offense of aggravated assault against a public servant, suggesting they were not
considering a “not guilty” verdict. See Render v. State, 316 S.W.3d 846, 854 (Tex. App.—
Dallas 2010, pet. ref’d) (holding defendant not egregiously harmed by omission of “not
guilty” verdict form). Castillo’s first issue is overruled.
III. EXTRANEOUS-OFFENSE TESTIMONY
In his second issue, Castillo contends that the trial court abused its discretion in
admitting the extraneous offense testimony of a jailhouse informant. The informant
testified that he came into contact with Castillo while in jail. Castillo told him that he
and a rival gang had been involved in a “shoot-out.” It was a “mission” that he had
been given to “earn his stripes” and become a full member of the Latin Kings gang. The
gun that he had used had been given to him by someone higher in rank in the gang.
The informant further testified that Castillo told him that he and “another guy”
were pulled over by the police after the incident. The other guy threw his gun into the
passenger seat toward Castillo, got out of the vehicle, and “surrendered.” The police
then tried to tell Castillo to get out of the car, but he pulled out the gun and tried to
shoot at the police (at the “woman cop,” specifically) so that he could get away. The
police shot back, and he was hit. He then attempted to flee, pulled into a friend’s house,
and tried to get rid of some cocaine and the weapon, but the police found him.
A. Motion for Continuance
We begin by addressing Castillo’s argument that the trial court abused its
discretion in failing to grant the request for a continuance that he made just before the
informant testified. Both Castillo’s request for a continuance and subsequent re-urging
Castillo v. State Page 8
of his request were made orally to the trial court. The record does not contain a sworn,
written motion requesting a continuance. See Anderson v. State, 301 S.W.3d 276, 278-79
(Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC. ANN. arts. 28.03, 29.08 (West 2006).
Thus, Castillo’s complaint about the trial court’s denial of his request for a continuance
is not preserved for review. See Anderson, 301 S.W.3d at 279; Dewberry v. State, 4 S.W.3d
735, 755 (Tex. Crim. App. 1999).
B. Rule 404(b)
We next address Castillo’s argument that the trial court abused its discretion in
admitting the jailhouse informant’s extraneous offense testimony because the State
failed to comply with the notice requirement of Rule 404(b).1 See TEX. R. EVID. 404(b).
“Rule 404(b) literally conditions admissibility of other-crimes evidence on the
State’s compliance with the notice provisions of Rule 404(b).” Hernandez v. State, 176
S.W.3d 821, 824 (Tex. Crim. App. 2005). Rule 404(b) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident, provided that upon timely request by the accused in a
criminal case, reasonable notice is given in advance of trial of intent to
1 Throughout this section of his argument, Castillo repeatedly refers to the jailhouse informant’s
testimony generally, in contrast to the way he referred to the testimony when stating his second issue—
“extraneous conduct testimony of a jailhouse informant.” Thus, it is unclear whether Castillo complains
of the admission of the extraneous-offense testimony of the jailhouse informant or the jailhouse
informant’s testimony in its entirety. But Rule 404(b)’s notice requirement clearly applies only to the
admissibility of extraneous-offense evidence, not the admissibility of evidence of the charged offense(s).
See TEX. R. EVID. 404(b) (“Evidence of other crimes, wrongs or acts is not admissible . . . .”) (emphasis
added); Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996) (“An extraneous offense is defined as
any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.”).
Thus, Rule 404(b)’s notice requirement did not apply to the jailhouse informant’s testimony about
Castillo’s confession to the charged offenses. Accordingly, the trial court did not abuse its discretion in
admitting that testimony.
Castillo v. State Page 9
introduce in the State’s case-in-chief such evidence other than that arising
in the same transaction.
TEX. R. EVID. 404(b).
The purpose of Rule 404(b)’s notice requirement is to prevent surprise to the
defendant and apprise him of the offenses the State plans to introduce at trial. See
Hernandez, 176 S.W.3d at 823-24; Hayden v. State, 66 S.W.3d 269, 272 (Tex. Crim. App.
2001). The rule requires “reasonable” notice. Hayden, 66 S.W.3d at 272.
The State’s Notice of Intention to Use Evidence of Prior Convictions and
Extraneous Offenses and Discovery Compliance, filed eleven days before trial, stated
that Castillo was “a member of and is associated with a criminal street gang, namely,
the Latin Kings,” and that, on September 2, 2007, he engaged in “Deadly
Conduct/Aggravated Assault/Discharging a firearm in the city limits of Bryan,
Texas/Unlawfully Carrying a Weapon.”
Castillo conclusorily complains, “[L]ooking at the [September 2, 2007] ‘Act or
Conduct’ in the list provided by the State, no one could rationally conclude the State’s
notice information concerned [the jailhouse informant’s] testimony about statements
made to him by Appellant.” Castillo argued to the trial court that deadly conduct,
aggravated assault, and discharging a firearm were all different ways of committing the
charged offense and therefore, the notice was not reasonable because it was not
sufficient to distinguish between the charged offense and the gang-related shooting just
before the charged offense. But the State points out that charged offenses would not be
included in a notice of its intent to introduce extraneous offenses, so the notice would
Castillo v. State Page 10
only be for the drive-by shooting. Therefore, the trial court did not abuse its discretion
in finding that the notice was reasonable. Moreover, we agree with the State’s
contention that the jailhouse informant’s extraneous offense testimony was same-
transaction contextual evidence, of which the State is not required to give notice. See
TEX. R. EVID. 404(b).
Extraneous offenses may be admissible as same-transaction contextual evidence
when “several crimes are intermixed, or blended with one another, or connected so that
they form an indivisible criminal transaction.” Prible v. State, 175 S.W.3d 724, 731-32
(Tex. Crim. App. 2005) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App.
1993)). This type of evidence results when an extraneous matter is so intertwined with
the State’s proof of the charged crime that avoiding reference to it would make the
State’s case difficult to understand or incomplete. Id. at 732. Same-transaction
contextual evidence is “admissible to show the context in which the criminal act
occurred.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). “[E]vents do
not occur in a vacuum, and the jury has a right to hear what occurred immediately prior
to and subsequent to the commission of that act so that it may realistically evaluate the
evidence.” Id.
There are two types of contextual evidence: (1) evidence of other offenses
connected with the primary offense, referred to as same-transaction contextual
evidence; and (2) general background evidence, referred to as background contextual
evidence. Mayes v. State, 816 S.W.2d 79, 86-87 (Tex. Crim. App. 1991). Same-transaction
contextual evidence is admissible as an exception under Rule 404(b) where such
Castillo v. State Page 11
evidence is necessary to the jury’s understanding of the charged offense. See Wyatt v.
State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000); Rogers, 853 S.W.2d at 33. Extraneous
conduct is considered to be same-transaction contextual evidence when the charged
offense would make little or no sense without also bringing in the same-transaction
contextual evidence. Rogers, 853 S.W.2d at 33. Such evidence provides the jury
information essential to understanding the context and circumstances of events that are
blended or interwoven. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).
The purpose of admitting same-transaction contextual evidence is not to show
that the extraneous charged offenses are part of a common scheme or that the charged
offense was committed in an identical signature manner. Jones v. State, 962 S.W.2d 158,
166 (Tex. App.—Fort Worth 1998, no pet.). Nor is the purpose to show that the
appellant committed the charged offense merely because he also committed the
extraneous offense. Id. Rather, the purpose of admitting extraneous evidence as same-
transaction contextual evidence is to put the instant offense in context. Id.; Mayes, 816
S.W.2d at 86-87; Camacho, 864 S.W.2d at 532.
The State introduced the jailhouse informant’s extraneous-offense testimony
because it included the acts that occurred just before the charged offenses and thus
explained why Castillo would be fleeing from the police. The trial court did not abuse
its discretion in admitting this evidence. It was same-transaction contextual evidence
that put in context the offenses of aggravated assault on a public servant and evading
arrest with a vehicle.
Castillo v. State Page 12
C. Rule 403
Finally, we address Castillo’s argument that, regardless of the Rule 404(b) issue,
the trial court abused its discretion in admitting the jailhouse informant’s extraneous
offense testimony under Rule 403 because the prejudicial effect of the evidence
significantly outweighed its probative value.
Under Rule 403, otherwise relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, or needless
presentation of cumulative evidence.” TEX. R. EVID. 403.
[A] trial court, when undertaking a Rule 403 analysis, must balance (1) the
inherent probative force of the proffered evidence along with (2) the
proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted. Of course,
these factors may well blend together in practice.
Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (quoting
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted)).
We review the trial court’s determination under Rule 403 for an abuse of discretion.
Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).
Probative force of the evidence: When the accused claims self-defense or accident,
the State, to show the accused’s intent, may show other violent acts where the
defendant was an aggressor. Johnson v. State, 963 S.W.2d 140, 144 (Tex. App.—
Castillo v. State Page 13
Texarkana 1998, pet. ref’d); Booker v. State, 929 S.W.2d 57, 63 (Tex. App.—Beaumont
1996, pet. ref’d). Castillo’s defense was that the gun accidentally fired during his
struggle with Officer Rockett. Thus, the jailhouse informant’s extraneous-offense
evidence about Castillo being involved in a gang-related shooting just before he was
stopped by the police is probative to the issue of intent to commit the charged offenses.
This factor weighs in favor of admissibility.
Proponent’s need for that evidence: Castillo’s intent was the predominant issue in
dispute at trial. Other than the fact that Castillo was riding in a pearl-colored car that
matched one of the vehicles described as being possibly involved in the earlier shooting
at Nicky’s, there was very little, if any, other evidence to show why he would have
committed the offenses of assault on a public servant and evading arrest with a vehicle.
This factor thus weighs in favor of admissibility.
Tendency of evidence to suggest a decision on an improper basis: The trial court gave
the standard limiting instruction for extraneous-offense evidence. We generally
presume the jury follows the trial court’s instructions in the manner presented. Colburn
v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). Thus, the extraneous-offense
evidence had limited potential to impress the jury in an irrational way. This factor does
not weigh in favor of exclusion of the evidence.
Jury confusion or distraction, undue weight, and amount of time or repetition: These
factors concern whether presentation of the evidence consumed an inordinate amount
of time or was repetitious, and the evidence’s tendency to confuse or distract the jury or
to cause the jury to place undue weight on its probative value. See Gigliobianco, 210
Castillo v. State Page 14
S.W.3d at 641-42; Newton, 301 S.W.3d at 320. The jailhouse informant’s entire testimony
was only thirty-five pages of the reporter’s record. His testimony regarding the
extraneous offense was not repetitious, and we do not believe that it could cause jury
confusion or distraction or cause the jury to give it undue weight, especially given the
trial court’s limiting instruction. All of these factors thus favor admission.
Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear
disparity between the degree of prejudice of the offered evidence and its probative
value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear
disparity” between the danger of unfair prejudice posed by the extraneous-offense
evidence and its probative value. Thus, the trial court did not abuse its discretion by
overruling Castillo’s Rule 403 objection to the jailhouse informant’s extraneous offense
testimony.
Castillo also complains in this issue that the trial court abused its discretion in
admitting testimony from the State’s investigator regarding an alleged retaliation
statement made by Castillo under Rule 403 because the prejudicial effect of the evidence
significantly outweighed its probative value.
Michael Jones, an investigator with the Brazos County District Attorney’s Office,
testified that he transferred the jailhouse informant from the jail to the courtroom and
then back to the jail after he had testified. As Jones was taking the jailhouse informant
back to the jail, Jones witnessed Castillo threaten the jailhouse informant. Castillo ran
from his holding cell up to a window near where the jailhouse informant was standing,
Castillo v. State Page 15
pointed at him, and said, “I got you. I got you, bitch.” Jones then yelled at Castillo to
get back into his cell when he heard Castillo say either “I’m going to cap you” or “I’m
going to put a cap in you.”
Probative force of the evidence: As stated above, when the accused claims self-
defense or accident, the State, to show the accused’s intent, may show other violent acts
where the defendant was an aggressor. Johnson, 963 S.W.2d at 144; Booker, 929 S.W.2d at
63. Castillo’s defense was that the gun accidentally fired during his struggle with
Officer Rockett. Thus, Jones’s testimony that Castillo threatened to “cap” the jailhouse
informant just after he had testified is probative because it assists the jury in
determining Castillo’s intent. This factor weighs in favor of admissibility.
Proponent’s need for that evidence: As explained above, Castillo’s intent was the
predominant issue at trial. Thus, evidence that assists the jury in determining his intent
is very important. This factor thus weighs in favor of admissibility.
Tendency of evidence to suggest a decision on an improper basis: As explained above,
the trial court gave a limiting instruction on extraneous-offense evidence, and we
generally presume the jury follows the trial court’s instructions in the manner
presented. Colburn, 966 S.W.2d at 520. Thus, the extraneous-offense evidence had
limited potential to impress the jury in an irrational way. This factor does not weigh in
favor of exclusion of the evidence.
Jury confusion or distraction, undue weight, and amount of time or repetition: Jones’s
testimony was only about fourteen pages of the reporter’s record. It was not
repetitious, and we do not believe that it could cause jury confusion or distraction or
Castillo v. State Page 16
cause the jury to give it undue weight, especially since the trial court gave a limiting
instruction to the jury. All of these factors thus favor admission.
In light of the foregoing, we cannot say that there is a “clear disparity” between
the danger of unfair prejudice posed by the extraneous-offense evidence and its
probative value. Thus, the trial court did not abuse its discretion by overruling
Castillo’s Rule 403 objection to Jones’s testimony regarding the alleged retaliation
statement made by Castillo. We overrule Castillo’s second issue.
IV. SUFFICIENCY OF THE EVIDENCE
In his third issue, Castillo contends that the evidence is legally and factually
insufficient to find him guilty of a third-degree felony of evading arrest with a vehicle,
and in his fourth issue, he contends that the evidence is legally and factually insufficient
to find him guilty of possession of a controlled substance with intent to deliver (one
gram or more but less than four grams).
After Castillo filed his brief in this case, the court of criminal appeals held that
there is “no meaningful distinction between the Jackson v. Virginia legal-sufficiency
standard and the Clewis factual-sufficiency standard” and that “the Jackson v. Virginia
legal-sufficiency standard is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt. All other cases to
the contrary, including Clewis, are overruled.” Brooks v. State, 323 S.W.3d 893, 902, 912
(Tex. Crim. App. 2010). Accordingly, we will apply the same standard of review to all
of Castillo’s sufficiency complaints.
Castillo v. State Page 17
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.” Jackson, 443 U.S. at 319. “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 sufficient to
support the conviction.” Hooper, 214 S.W.3d at 13.
Lucio v. State, No. AP-76,020, --- S.W.3d ---, ---, 2011 WL 4347044, at *16 (Tex. Crim. App.
Sept. 14, 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326. Further,
direct and circumstantial evidence are treated equally: "Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt." Hooper, 214 S.W.3d at 13. Finally, it
is well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Castillo v. State Page 18
A. Third-Degree Felony Evading Arrest with a Vehicle
“A person commits an offense if he intentionally flees from a person he knows is
a peace officer attempting lawfully to arrest or detain him.” Act of May 25, 2001, 77th
Leg., R.S., ch. 1480, 2001 Tex. Gen. Laws 5265, 5265 (amended 2009, 2011) (current
version at TEX. PENAL CODE ANN. § 38.04 (West 2011)). While the offense of evading
arrest or detention is ordinarily a misdemeanor, it becomes a state-jail felony if “the
actor uses a vehicle while the actor is in flight.” Id. The offense then becomes a felony
of the third degree if “the actor uses a vehicle while the actor is in flight and the actor
has been previously convicted” of evading arrest or detention, or “another suffers
serious bodily injury as a direct result of an attempt by the officer from whom the actor
is fleeing to apprehend the actor while the actor is in flight.” Id.
Castillo argues that the evidence is insufficient to find him guilty of third-degree
felony evading arrest with a vehicle because, during the guilt-innocence phase of the
trial, the State did not introduce evidence of any prior convictions that he had for
evading arrest or detention, nor did the evidence reveal that Officer Nunn had suffered
serious bodily injury after the gun went off inside the vehicle. The State does not
dispute this. Instead, the State contends that the punishment range was properly
enhanced from a state-jail felony to a third-degree felony because the jury made an
affirmative deadly-weapon finding, and the evidence shows that Castillo did, in fact,
use or exhibit a deadly weapon, namely a firearm, during the commission of the
offense. See TEX. PENAL CODE ANN. § 12.35(c)(1) (West 2011) (elevating a state-jail felony
to a third-degree felony upon a deadly-weapon finding).
Castillo v. State Page 19
Castillo argues that the felony offense of evading arrest does not include the use
or exhibition of a deadly weapon and cites dicta in Alejos v. State, 555 S.W.2d 444, 449
(Tex. Crim. App. 1977). However, the offense of evading arrest with a vehicle is
susceptible to an affirmative deadly-weapon finding. See State v. Brown, 314 S.W.3d 487,
488-91 (Tex. App.—Texarkana 2010, no pet.); Garza v. State, 298 S.W.3d 837, 843-44 (Tex.
App.—Amarillo 2009, no pet.). Furthermore, a sentencing enhancement that increases
punishment beyond the maximum statutory sentence is the functional equivalent of an
element of a greater offense. Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S. Ct.
2348, 2365 n.19, 147 L. Ed. 2d 435 (2000). Viewing all the evidence in the light most
favorable to the verdict, we conclude that a rational trier of fact could have found
Castillo guilty of the offense of evading arrest with a vehicle beyond a reasonable doubt
and could have found beyond a reasonable doubt that he used or exhibited a deadly
weapon during that offense’s commission. We thus overrule Castillo’s third issue.
B. Possession of a Controlled Substance with Intent to Deliver
To prove that Castillo committed the offense of possession of a controlled
substance with intent to deliver, the State was required to establish that he knowingly
possessed a controlled substance, namely, cocaine, in an amount of one gram or more
but less than four grams by aggregate weight, including adulterants and dilutants, with
the intent to deliver it. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(3)(D),
481.112(a), (c) (West 2010). Castillo does not dispute that he possessed cocaine; rather,
he argues that the evidence is insufficient to show that he had the intent to deliver it.
“Deliver” means to transfer, actually or constructively, a controlled substance to
Castillo v. State Page 20
another. TEX. HEALTH & SAFETY CODE ANN. § 481.002 (West 2010). Intent to deliver a
controlled substance may be proven by circumstantial evidence. Patterson v. State, 138
S.W.3d 643, 649 (Tex. App.—Dallas 2004, no pet.). Factors courts have considered
include the following: (1) the nature of the location where the accused was arrested; (2)
the quantity of contraband in the accused’s possession; (3) the manner of packaging; (4)
the presence or lack thereof of drug paraphernalia (for either use or sale); (5) the
accused’s possession of large amounts of cash; and (6) the accused’s status as a drug
user. Moreno v. State, 195 S.W.3d 321, 325-26 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref’d). The number of factors present is not as important as the logical force the factors
have in establishing the elements of the offense. Id. at 326. Intent can also be inferred
from the acts, words, and conduct of the accused. Id.; see Patrick v. State, 906 S.W.2d 481,
487 (Tex. Crim. App. 1995). Also, expert testimony by experienced law enforcement
officers may be used to establish an accused’s intent to deliver. See Mack v. State, 859
S.W.2d 526, 529 (Tex. App.—Houston [1st Dist.] 1993, no pet.).
Here, Veronica Casas testified that she lived at the home where Castillo was
found. Before the police arrived, Castillo gave her a bag and said, “Get rid of this.”
When the police officer arrived, she gave the bag to him. Police Sergeant Walter
Melnyk testified that Casas handed him a plastic baggy that contained two smaller
baggies containing a white, powdery substance that appeared to be cocaine. When
Sergeant Melnyk was asked if, based on his training and experience, the amount of
cocaine that was recovered was consistent with personal use, he replied, “I have
recovered this amount of cocaine before that has been what we would probably
Castillo v. State Page 21
consider for personal use; but based on all the circumstances surrounding this, I don’t
think it would be just for personal use only.” Sergeant Melnyk explained, “The fact that
it’s packaged separately into two separate containers and further into a larger plastic
baggy would indicate that it may be probably for sale instead of -- a personal use you’re
only going to find one smaller amount, one packaged all by itself.” Furthermore, he
believed that money was found on Castillo at the time of his arrest, and he was not
aware of any evidence that was collected that would suggest personal use in this case.
Sergeant Melnyk also stated that the amount of cocaine that he typically sees for
personal use is about a gram; however, he acknowledged on cross-examination that this
is not his area of expertise and he did not know the street value of the cocaine.
Officer Jaime Harvey testified that he went with Castillo to the hospital, where
he recovered Castillo’s clothing and belongings and found $170 (25 one-dollar bills, 13
five-dollar bills, and 8 ten-dollar bills) in Castillo’s pocket. See Moreno, 195 S.W.3d at
325-26 (accused’s possession of large amounts of cash is one factor courts have
considered in determining intent to deliver).
Castillo argues that this evidence is insufficient to establish that he had the intent
to deliver the cocaine because the facts are equally consistent with the conclusion that
he possessed the cocaine for personal use. Castillo states that neither Sergeant Melnyk
nor Officer Harvey testified that Castillo was in a high-crime area where drug houses
were located; no evidence was presented that Castillo had been previously convicted of
possession of a controlled substance; and no evidence was presented that he was under
the influence of any drug. Castillo also questions the testimony of Sergeant Melnyk
Castillo v. State Page 22
because he could not testify to the drug’s street value, nor was he sure how much one
person would use at one time.
The jury is the exclusive judge of the facts, the credibility of the witnesses, and
the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672
(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). As the reviewing court, we “should
not substantially intrude upon the jury’s role as the sole judge of the weight and
credibility of witness testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App.
2002). Here, by finding Castillo guilty, the jury obviously relied on the State’s evidence
and the reasonable inferences therefrom and rejected Castillo’s argument. Viewing all
the evidence in the light most favorable to the verdict, we conclude that a rational trier
of fact could have found Castillo guilty of the offense of possession of a controlled
substance with intent to deliver (one gram or more but less than four grams) beyond a
reasonable doubt. We overrule Castillo’s fourth issue.
V. CONCLUSION
Having overruled all Castillo’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed October 26, 2011
Do not publish
[CRPM]
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