Cornelio Castellanos v. State ( 2018 )

NUMBER 13-16-00398-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CORNELIO CASTELLANOS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 428th District Court
of Hays County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
Appellant Cornelio Castellanos challenges his Hays County conviction for
aggravated assault with a deadly weapon, a second-degree felony.1 TEX. PENAL CODE
ANN. § 22.02(a)(2) (West, Westlaw 2017 through 1st C.S.). By three issues, Castellanos
argues that the trial court erroneously allowed hearsay evidence that provides the only
1 This cause is before the Court on transfer from the Third Court of Appeals in Austin pursuant to an
order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN § 73.001 (West, Westlaw through
2017 1st C.S.). Because this is a transfer case, we apply precedent of the Third Court of Appeals to the
extent it differs from our own. See TEX. R. APP. P. 41.3.
basis for his conviction and that he was entitled to a jury instruction limiting the uses of
impeachment evidence. We affirm.
I. BACKGROUND
Castellanos’s conviction arises from a domestic altercation at the home of Rosa
Cortez, Castellanos’s common-law wife. According to Cortez’s testimony, she lived in a
four-bedroom rented house with her son Francisco Figueroa, his partner Diana Gomez,
her grandson, and her teenage daughter. Before June 1, 2015, Castellanos lived there
for three or four years. Cortez also regularly rented a room to other people.
Cortez worked with Antonio Yaya at a restaurant in Dripping Springs. Yaya was
looking for a room to rent. He and Cortez agreed that Yaya would rent a room from Cortez.
Yaya explained that the first night he spent at the house, he arrived after his shift from
another job sometime after 11 p.m. and went to bed. When Yaya arrived at the house,
Castellanos was not present.
Yaya’s trial testimony described the events he witnessed and heard. He awoke
around 3:30 a.m. when the door to his bedroom was kicked in and fell to the floor. Yaya
heard a loud commotion and Castellanos screaming, “What’s going on?” Yaya described
Castellanos as drunk. Cortez’s son Figueroa was trying to keep Castellanos out of Yaya’s
bedroom. Yaya placed the door back in the doorway and closed it in an effort to go back
to sleep. The argument outside his door continued and appeared to be escalating. Yaya
thought he heard the sound of blows being exchanged. He heard Cortez and Gomez
screaming and yelling. Yaya opened his door because the noise appeared to be coming
closer to his room. At one point, Cortez yelled to Yaya to call 911, which he did. While
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Yaya was on the phone, Castellanos left the house and was gone by the time the Hays
County Deputy Sheriffs arrived.
Yaya speaks both English and Spanish. The members of Cortez’s household only
speak Spanish; the responding police officers spoke only English. The officers used Yaya
to translate during the investigation. Cortez was visibly shaking and appeared to Yaya to
be scared. Yaya heard Cortez tell one of the officers that Castellanos threatened her and
Yaya with a machete. Yaya saw that Cortez was still shaking and appeared to be nervous
from the events of the early morning when she was talking with the officers. Figueroa was
also shaking when the police arrived. While Yaya while he was on the telephone with 911,
Cortez told Yaya that Castellanos threatened her with a machete. Yaya did not see the
machete in Castellanos’s hands, but saw the machete when it was handed to the police
officers who responded to the 911 call.
At trial, Cortez testified that Castellanos came home drunk early the morning of
June 1, 2015. Cortez wanted him out of the house and enlisted Figueroa to get him out.
According to Cortez’s testimony, Castellanos did not threaten anyone with a machete. The
machete was in the house because Figueroa was going to use it on the lawn. The State
played excerpts of videotape and the 911 call taken early June 1, 2015 that contradicted
Cortez’s testimony. On the videotape Cortez was asked, “Did he threaten you?” and she
responded through Yaya, “Yes, that he was going to kill me if [Yaya] did not leave the
house immediately.” Earlier on the tape, Cortez said Castellanos had a machete. Before
the State played the videotape, defense counsel objected. The trial court overruled the
objections, and the evidence was admitted, subject to the trial court’s limiting instruction
that the evidence be used only for impeachment purposes.
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Figueroa testified that his mother woke him about three a.m. on June 1, 2015 and
asked for his help with Castellanos. “She was very nervous, and she was scared.” She
said she wanted me to get Castellanos out of the house; he was drunk. He was in her
bedroom, and I went in and grabbed him to take him out of the house. Figueroa denied
that Castellanos assaulted anyone but testified that his mother “was very scared. She
thought he was going to assault her, so that’s why she called me.”
Figueroa denied speaking to Yaya that night, and testified that the door to Yaya’s
bedroom was broken before that night, “It never worked.” Figueroa did not know who
called 911, he thought it was his mother or Gomez.
Figueroa recalled speaking to the police when they responded to the 911 call and
that Yaya translated. He also acknowledged speaking to a detective later that morning,
but Figueroa denied that he had a butcher knife in his hand later that morning when the
Sheriff’s deputy came. Figueroa further denied that he told the deputy he feared
Castellanos had returned.
Detective Manuel De La Rosa from the Hays County Sheriff’s Department testified
that he went to Cortez’s house around 10:00 a.m. on June 1, 2015, to follow up on the
early morning incident and 911 call. He wanted to make sure everyone was safe, and he
was the only Spanish speaker in the department. Detective De La Rosa described what
he saw and the events at the house. He knocked on the door several times but initially
did not see any movement in the house. A child approached the door, and Detective De
La Rosa conveyed to the child that he wanted to speak to an adult. According to Detective
De La Rosa, Figueroa came out of the bedroom with a butcher knife in his hand and looked
scared. When Figueroa realized that Detective De La Rosa was an officer, he put the
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knife down and came to the door. Figueroa said he thought Castellanos had returned,
and he was afraid. Defense counsel objected before this testimony. The trial court heard
the evidence outside the jury’s presence and overruled the defense objection to hearsay.
Detective De La Rosa’s testimony was repeated before the jury.
Gomez testified that she loved Castellanos as if he were her father-in-law. On June
1, 2015, she was awakened when Cortez knocked on their door. Cortez was scared
because they had not seen “[Castellanos] . . . aggressive. He was upset. He was jealous.”
She described Castellanos as “a very good person” but acknowledged they were all scared
because they “had never seen him that way . . . . He was drunk and he was like jealous .
. . because [Cortez] was renting the room to a co-worker.” Gomez explained that the door
to Yaya’s room fell into the room because Castellanos, Figueroa, and she fell into it while
she and Figueroa were trying to hustle Castellanos out of the house. Gomez testified that
the machete was in Cortez’s bedroom that morning, although it was usually kept in
Castellanos’s truck.
The jury found Castellanos guilty on one count of aggravated assault against Cortez
and found Castellanos guilty of the lesser included count of assault by threat as to
Figueroa. See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (West, Westlaw through
2017 1st C.S.). Castellanos elected punishment by the trial court. During sentencing,
Cortez testified that Castellanos was her husband, but then clarified that they were a
couple, but never married. She asked the trial court to give him a minimum sentence, “As
little as possible. Two years, at most. . . . Because he didn’t do anything bad. He didn’t
attack me, he didn’t attack anyone.” During sentencing, defense counsel argued that
Castellanos had an alcohol problem as evidenced by his numerous previous convictions
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for DWI. The State argued that his previous convictions and his several illegal entries into
the United States exemplified his lack of respect for law and argued for more than the
minimum sentence. The trial court imposed a four-year sentence in the Texas Department
of Criminal Justice–Institutional Division on count one and time served on count two.
II. HEARSAY
Castellanos argues in his first two grounds that the trial court abused its discretion
in admitting two hearsay statements during trial over defense objection. He argues that
the hearsay was harmful because it provided the only evidence of elements of the crime
for which Castellanos was convicted.
A. Standard of Review
Hearsay is a statement other than one made by the declarant while testifying at the
trial or hearing offered in evidence to prove the truth of the matter asserted. TEX. R. EVID.
801(d). Hearsay is not admissible except as provided by statute or the rules of evidence.
Id. 802. An appellate court reviews a trial court’s evidentiary ruling for abuse of discretion
and will not reverse that decision absent an abuse of discretion. See Apolinar v. State,
155 S.W.3d 184, 186 (Tex. Crim. App. 2005); Zuliani v. State, 97 S.W.3d 589, 595 (Tex.
Crim. App. 2003); Epps v. State, 24 S.W.3d 872, 879 (Tex. App.—Corpus Christi 2000,
pet. ref'd). “The trial court abuses its discretion when [its] decision lies outside the zone
of reasonable disagreement.” McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App.
2008).
To preserve error for appellate review, the record must show that (1) the
complaining party made a timely and specific request, objection, or motion; and (2) the
trial judge either ruled on the request, objection, or motion (expressly or implicitly), or he
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refused to rule, and the complaining party objected to that refusal. See TEX. R. APP. P.
33.1(a); Jaynes v. State, 216 S.W.3d 839, 850 (Tex. App.—Corpus Christi 2006, no pet.).
B. Excited Utterance
At trial, Yaya testified that Cortez stated that Castellanos threatened to kill her with
a machete. Castellanos argues that the trial court abused its discretion in allowing that
testimony. The State argued that the statement qualified as an excited utterance.
An excited-utterance is a recognized exception to the hearsay rule. TEX. R. EVID.
803(2). The exception applies to “[a] statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition.” McCarty, 257 S.W.3d at 239. Over defense objection, Yaya testified that
Cortez told him and later told the investigating officer that Castellanos threatened to kill
her and Yaya with a machete. Cortez made the statements both while Yaya was on the
phone with the 911 operator and again later when the police arrived, and he was
translating for them. The trial court overruled the hearsay and confrontation objection
made by defense counsel. Yaya testified regarding Cortez’s demeanor when she first
made the statement while Yaya was calling the 911 operator. He described her as “yelling
and screaming.” When she related the statement to the police officer a “few minutes later,”
Yaya described Cortez as “still stressed about the situation,” “nervous,” and “definitely
shaking.” In addition, Figueroa and Gomez testified that while Castellanos was in the
house, Cortez was very scared.
“In determining whether a hearsay statement is admissible as an excited utterance,
the court may consider the time elapsed and whether the statement was in response to a
question.” Zuliani, 97 S.W.3d at 595. “The basis for the excited utterance exception is a
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psychological one, namely, the fact that when a [person] is in the instant grip of violent
emotion, excitement or pain, [s]he ordinarily loses the capacity for reflection necessary to
the fabrication of a falsehood and the truth will come out.” Id. (emphasis in original)
(internal quotations omitted). Thus, a reviewing court must determine whether the
statement was made “under such circumstances as would reasonably show that it resulted
from impulse rather than reason and reflection.” Fowler v. State, 379 S.W.2d 345, 347
(Tex. Crim. App. 1964). Based upon Yaya, Figueroa, and Gomez’s description of Cortez’s
demeanor at the time she made both statements, the trial court did not abuse its discretion
in admitting Yaya’s testimony that he heard Cortez say that Castellanos was threatening
to kill her with a machete as an excited utterance. Castellanos’s first issue on appeal is
overruled.
C. Present Sense Impression
Defense counsel objected to Detective De La Rosa’s testimony that Figueroa had
a butcher knife in his hand and told the detective that he feared that Castellanos had
returned to the house. The trial court allowed the testimony as a present sense
impression.
A statement of a present sense impression by a witness is admissible as an
exception to hearsay. TEX. R. EVID. 803(1). Such a statement describes or explains an
event made while or immediately after the declarant perceived it. Id. “The rationale for
the exception is that the contemporaneity of the statement with the event that it describes
eliminates all danger of faulty memory and virtually all danger of insincerity.” Fischer v.
State, 252 S.W.3d 375, 380 (Tex. Crim. App. 2008). However, a present sense impression
statement must be made during the event. Detective De La Rosa testified that Figueroa
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was calm and appeared to have had time for calm reflection when they spoke several
hours after the altercation. Figueroa’s statement to the detective of his fear does not
qualify as a present sense impression. However, if the trial judge’s decision is correct on
any theory of law applicable to the case, it will be sustained even when the trial judge gives
the wrong reason for his decision. See State v. Story, 445 S.W.3d 729, 732 (Tex. Crim.
App. 2014); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
Figueroa’s statement that he was afraid Castellanos had returned was a statement
of his then-existing emotional state. A statement of then-existing mental, emotional, or
physical condition is also a hearsay exception. TEX. R. EVID. 803(3). In Williams v. State,
a deputy was permitted to describe a declarant who was frightened of her attacker and her
statement to the deputy about her fear. 798 S.W.2d 368, 371 (Tex. App.—Beaumont
1990, no pet.). “[A] victim’s statement regarding [his] emotional response to a particular
person qualifies as a statement of then existing state of emotion under Rule 803(3).”
Cardenas v. State, 115 S.W.3d 54, 63 (Tex. App.—San Antonio 2003, no pet.) (holding
that the trial court did not abuse its discretion in admitting declarant’s statement that
defendant made her uncomfortable). Similarly, in McDonald v. State, the court held that
the trial court did not abuse its discretion in permitting testimony that the declarant changed
her locks to protect herself from her husband. 911 S.W.2d 798, 806 (Tex. App.—San
Antonio 1995, pet. dims’d); see also Vann v. State, 853 S.W.2d 243, 253 (Tex. App.—
Corpus Christi 1993, pet. ref’d) (holding that declarant’s statement “that he was not happy
in his current marriage and wanted to find a way out and Cherie was visibly upset with him
and wouldn’t give him the divorce he wanted” qualified as a statement of emotional state).
We conclude that the trial court did not abuse its discretion in admitting evidence of
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Figueroa’s then state of mind—fear of Castellanos. Accordingly, we overrule
Castellanos’s issue on appeal.
III. JURY CHARGE ERROR
Castellanos argues in his third issue that the trial court should have given his
requested limiting instruction in the jury charge. He claims that the court’s failure to do so
harmed him.
A. Standard of Review
Our first duty in analyzing a jury-charge issue is to decide whether error exists. Ngo
v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125
S.W.3d 450, 453 (Tex. Crim. App. 2003)). Next, the court must determine whether harm
resulted from the error that requires reversal. Mann v. State, 964 S.W.2d 639, 641 (Tex.
Crim. App. 1998); see Benn v. State, 110 S.W.3d 645, 648 (Tex. App.—Corpus Christi
2003, no pet.). Once an appellate court finds jury-charge error, it applies one of the two
following standards of review: “Where there has been a timely objection made at trial, an
appellate court will search for only ‘some harm.’ By contrast, where the error is urged for
the first time on appeal, a reviewing court will search for ‘egregious harm.’” Mann, 964
S.W.2d at 641 (quoting Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994)).
Harm must be assessed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of counsel,
and any other relevant information revealed by the record of the trial as a whole. Abdnor,
871 S.W.2d at 733.
A trial court may not single out certain testimony and comment on it in the jury
charge. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw 2017 through 1st
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C.S.); Chambers v. State, 700 S.W.2d 597 (Tex. Crim. App. 1985). The jury charge should
state the “law applicable to the case, without expressing or intimating any opinion as to
the weight of the evidence, or the credibility of the statements made by the party accused
or by the witnesses.” Henry v. State, 149 Tex. Crim. 321, 323, 194 S.W.2d 264, 265
(1946); see also Rodriguez v. State, No. 13-08-095-CR, 2009 WL 1567341 at *3 (Tex.
App.—Corpus Christi Feb. 26, 2009, pet. ref’d) (mem. op., not designated for publication).
To determine whether an instruction is a comment on the weight of the evidence, the
reviewing court is required “to assess the probable effect of the instruction on the jury in
the context in which it was given.” O’Connell v. State, 17 S.W.3d 746, 748 (Tex. App.—
Austin 2000, no pet.) (quoting Russell v. State, 749 S.W.2d 77, 79 (Tex. Crim. App. 1988)).
B. Discussion
At the time the State’s videotape exhibits and translation were admitted and used
with Cortez, the trial court gave the following limiting instruction to the jury: “If the jury
considers this evidence, and it is always the jury’s prerogative of what evidence it may
consider; if it does in this case, the jury can only consider this evidence for impeachment.”
State’s counsel questioned Cortez regarding the statements she made on the video. She
testified she did not recall making the statements. She further testified she did not
remember because she was scared, not because Castellanos threatened her, but because
of his aggressive attitude.
After the charge conference, defense counsel requested an instruction limiting the
use of prior inconsistent statements. “I would ask to be put in the Jury Charge is the prior
inconsistent statements. The fact that the jury be instructed that prior inconsistent
statements are to only be used for impeachment purposes, not as substantive evidence.”
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The State responded that it would be difficult to give such an instruction because some
evidence was allowed as an exception to the hearsay rule and not as an inconsistent
statement for impeachment.2 The trial court denied defendant’s request, “I believe that
would be a comment on the evidence. And I also believe that the rights of the defendant
have been protected, based on the Court’s instruction.” Defense counsel wrote a
proposed instruction3 and submitted it to the trial court which then ruled, “The Court has
reviewed the requested jury instruction with regard to prior inconsistent statements and
that has, in fact, been overruled.”
During closing, defense counsel reminded the jury about prior inconsistent
statements and how they are to be used only for impeachment. When the State discussed
the video and the transcript/translation of the video, it emphasized the discrepancies
between Cortez’s statements on the witness stand and her statements the night of the
altercation. The State argued that she and other family members lied at trial about the
events to protect Castellanos.
Because we presume that the jury followed the trial court’s limiting instructions at
the time the evidence was admitted, we do not find jury charge error.4 Although the
presumption is refutable, the appellant must rebut the presumption by pointing to evidence
that the jury failed to follow the trial court’s instructions. Thrift v. State, 176 S.W.3d 221,
224 (Tex. Crim. App. 2005). Castellanos has not pointed to any such proof.
Castellanos’s third issue is overruled.
2 The two exceptions to hearsay discussed previously were properly used as substantive evidence.
3 The proposed instruction read: “You have heard testimony of prior inconsistent statements. Such
testimony is to be used for impeachment purposes only, not as substantive evidence.”
4 See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (holding that a jury is presumed
to follow a limiting instruction).
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IV. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed the
16th day of August, 2018.
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