Agapito Castellano v. the State of Texas ( 2024 )

NUMBER 13-23-00347-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
AGAPITO CASTELLANO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 156TH DISTRICT COURT
OF BEE COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva
Memorandum Opinion by Justice Silva
Appellant Agapito Castellano was indicted on charges of murder, a first-degree
felony (Count I), and unlawful possession of a firearm by a felon, a third-degree felony
(Count II). See TEX. PENAL CODE ANN. §§ 19.01, 46.04. A jury returned a guilty verdict on
the lesser-included offense of manslaughter, a second-degree felony, and unlawful
possession of a firearm by a felon. See id. §§ 19.04, 46.04. The State alleged that each
conviction should be enhanced for punishment purposes, and appellant entered a plea of
true to two prior felony convictions: unlawful possession of a firearm by a felon, and
forging a government instrument. See id. §§ 12.42(d), 32.21, 46.04. Appellant was
sentenced by the trial court to sixty-five years’ and thirty years’ incarceration for Counts I
and II, respectively.
Appellant argues two issues on appeal: (1) the evidence is legally insufficient to
establish the identity element of his manslaughter conviction; and (2) the trial court
entered a void sentence outside the statutory punishment range. We affirm as modified.
I. BACKGROUND
On September 21, 2022, Beeville Police Department (BPD) officers responded to
a call that a male with injuries was being transported to Christus Spohn Hospital. When
police arrived at the hospital, they identified the injured male as Rocky Vela. BPD Officer
Thomas Dozier observed that Vela suffered a gunshot wound to his abdomen. Vela
succumbed to his injuries in the hospital on September 28, 2022. An autopsy revealed
that the gunshot wound was the cause of death.
At trial, Vela’s ex-girlfriend, Yolanda Mendez, testified that Vela was at her home
the morning he was shot. Mendez further testified that she was arguing with Vela outside
the home when she heard a loud bang, but she did not see anyone with a gun. Mendez
stated that four others were also present at the time of the shooting.
Morales testified that he was a close friend of Vela and that he and a man named
“D-Town” were present when Vela was shot. Morales identified appellant in court as “D-
Town.” Morales recounted that he came outside after hearing Vela and Mendez arguing,
2
saw Vela push Mendez, and then witnessed appellant shoot Vela immediately thereafter.
Morales also stated that he saw at least one bullet hit Vela and the additional bullets go
into Mendez’s home. Morales further testified that appellant had previously showed him
a gun inside Mendez’s home and indicated to Morales that if Vela went to Mendez’s home
and “disrespected anybody or anyone, [appellant] was going to shoot him.”
Appellant was arrested in Dallas County and BPD Sergeants Joshua Meakins and
Jonell Cisneros transported him to Bee County. During the transport, appellant
questioned how officers could “charge” him if they “did not locate a gun.” Officers were
unable to locate the firearm used to shoot Vela but they found three .380 caliber shell
casings and a bullet lodged in the wall paneling of Mendez’s home. The State’s firearm
examiner testified that those shell casings were fired from the same firearm that shot Vela.
The State indicted appellant on charges of murder and unlawful possession of a
firearm by a felon on December 14, 2022, and filed a notice of intent to enhance
punishment on June 22, 2023. The notice alleged that appellant was twice previously
convicted of felonies and that appellant was therefore a habitual felony offender (HFO).
The jury returned guilty verdicts on the lesser-included offense of manslaughter and
unlawful possession of a firearm by a felon. Appellant elected to have the trial court
assess his punishment and he pleaded true to the State’s enhancement allegations
before the court. Appellant was sentenced to sixty-five years’ imprisonment on Count I
and thirty years’ imprisonment on Count II, with the sentences to run concurrently. This
appeal followed.
3
II. LEGAL SUFFICIENCY
By appellant’s first issue, he argues that the evidence was legally insufficient to
support the jury’s finding of guilt on the manslaughter charge.
A. Standard of Review and Applicable Law
“To satisfy constitutional due process requirements, a criminal conviction must be
supported by sufficient evidence.” Perez v. State, 689 S.W.3d 369, 377 (Tex. App.—
Corpus Christi–Edinburg 2024, no pet.) (quoting Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009)). In assessing the legal sufficiency of the evidence to support a
criminal conviction, we consider “all the evidence in the light most favorable to the verdict
and determine whether, based on that evidence and reasonable inferences therefrom, a
rational juror could have found the essential elements of the crime beyond a reasonable
doubt.” Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see Jackson v.
Virginia, 443 U.S. 307, 318 (1979). Therefore, in analyzing legal sufficiency, we defer to
the jury’s credibility and weight determinations because the jury is the “sole judge” of
witnesses’ credibility and the weight to be given testimony. Martin v. State, 635 S.W.3d
672, 679 (Tex. Crim. App. 2021) (citing Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim.
App. 2012)); see Jackson, 443 U.S. at 319.
We measure legal sufficiency by the elements of the offense as defined by the
hypothetically correct jury charge. Baltimore, 689 S.W.3d at 341; Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a charge [is] one that accurately sets out
the law, is authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability, and adequately
4
describes the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at
240.
To sustain a conviction of manslaughter, the evidence must show that: (1) a
person; (2) recklessly; (3) caused the death of an individual. TEX. PENAL CODE ANN.
§ 19.04; Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013). “Identification of
the defendant as the person who committed the offense charged is part of the State’s
burden of proof beyond a reasonable doubt.” Wiggins v. State, 255 S.W.3d 766, 771 (Tex.
App.—Texarkana 2008, no pet.) (citing Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim.
App. 1984)). Therefore, the burden in this case was on the State to show that appellant
was the person who recklessly caused the death of the victim.
Identity of the perpetrator may be proven by direct or circumstantial evidence.
Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018); Wiggins, 255 S.W.3d at
771. “Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214
S.W.3d at 13. “The sufficiency of the evidence is then determined from the cumulative
effect of all the evidence; each fact in isolation need not establish the guilt of the accused.”
Wiggins, 255 S.W.3d at 771.
B. Discussion
Appellant argues that the evidence is legally insufficient to prove that he was the
person who committed the offense because there exists reasonable doubt as to his
5
identity as the shooter. Appellant contends that the only evidence linking appellant to the
offense was Morales’s eyewitness testimony and that his testimony lacked credibility.
However, “[a]s a reviewing court, we may not reevaluate the weight and credibility
of the evidence in the record and thereby substitute our own judgment for that of the
factfinder.” See Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). Morales
witnessed the shooting and identified appellant as the shooter in court. Accordingly, this
evidence alone, viewed in a light most favorable to the verdict, was sufficient to support
a rational jury’s finding beyond a reasonable doubt that appellant was the shooter. See
Hammack, 622 S.W.3d at 914; Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App.
2004) (holding that evidence was legally sufficient to support a rational jury’s finding that
appellant was the individual who shot the complainant where he was identified by
eyewitnesses); see also Payton v. State, No. 14-20-00175-CR, 2021 WL 4472522, at *4
(Tex. App.—Houston [14th Dist.] Sept. 30, 2021, no pet.) (mem. op., not designated for
publication) (concluding same where shell casings at the scene were fired from the same
weapon appellant was known to carry).
Nevertheless, appellant argues that Morales’s testimony was not credible because
his testimony was self-serving, and Morales was reluctant to testify. These contentions
attack the credibility of the witnesses’ testimony, not its sufficiency. “[T]he jury is the sole
judge of the witnesses’ credibility and the weight to be given their testimony.” Brooks v.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Ghanem v. State, 689 S.W.3d 354,
367 (Tex. App.—Corpus Christi–Edinburg 2024, pet. ref’d). Thus, the jury could have
rationally chosen to believe Morales’s testimony regarding the identity of the shooter. See
Henderson, 582 S.W.3d at 355.
6
Accordingly, we hold that there was legally sufficient evidence to support
appellant’s conviction of manslaughter. We overrule appellant’s first issue.
III. VOID SENTENCE
By his second issue, appellant argues that the trial court entered a void sentence
on Count II because it was outside of the punishment range for the offense he was
convicted of.
A. Applicable Law
As a general rule, a sentence will not be disturbed on appeal if it is within its
statutory range of punishment. Jackson, 680 S.W.2d at 814. But “[a] sentence that is
outside the maximum or minimum range of punishment is unauthorized by law and
therefore illegal” and void. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003);
see also Gutierrez v. State, No. 13-22-00042-CR, 2023 WL 4662952, at *3 (Tex. App.—
Corpus Christi–Edinburg July 20, 2023, no pet.) (mem. op., not designated for
publication).
If it is shown on the trial of a felony offense other than a state jail felony that the
defendant has previously been finally convicted of two felony offenses, and the second
previous felony conviction is for an offense that occurred subsequent to the first previous
conviction having become final, a convicted defendant may be punished by imprisonment
in the Texas Department of Criminal Justice for life, or for any term of not more than
ninety-nine years’ or less than twenty-five years’. TEX. PENAL CODE ANN. § 12.42(d).
To establish a defendant’s conviction of a prior offense for sentencing
enhancement purposes, the State must prove beyond a reasonable doubt that (1) a prior
final conviction exists, and (2) the defendant is linked to that conviction. Flowers v. State,
7
220 S.W.3d 919, 921 (Tex. Crim. App. 2007); Rogers v. State, 599 S.W.3d 321, 322–23
(Tex. App.—Houston [14th Dist.] 2020, no pet.). Once a defendant pleads true to the
enhancement allegations, the State is relieved of its burden to prove the allegations
because a plea of “true” constitutes sufficient evidence to support the enhancement
allegation. Hopkins v. State, 487 S.W.3d 583, 586 (Tex. Crim. App. 2016); Wilson v. State,
671 S.W.2d 524, 526 (Tex. Crim. App. 1984) (holding that appellant’s judicial confession
was a sufficient basis for the trial court to find the enhancement paragraphs true).
B. Discussion
Appellant contends that the trial court erred by entering an incorrect judgment of
conviction for Count II and in sentencing appellant outside the proper punishment range
for that conviction. However, appellant does not explain the alleged defects of the
indictment, offers no further explanation as to why his sentence was outside the proper
punishment range, 1 does not refer us to any cases applying the law to facts similar to the
instant case, and otherwise provides no pertinent legal authority related to the issue. 2 See
TEX. R. APP. P. 38.1(i) (stating that appellant’s brief must “contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record”); Lopez v. State, 672 S.W.3d 915 (Tex. App.—Corpus Christi–Edinburg 2023, pet.
ref’d) (finding that appellant’s issue was waived through failure to provide citations to the
record and to pertinent legal authority). “[A]n appellate court has no ‘obligation to
construct and compose [an] appellant’s issues, facts, and arguments with appropriate
1 Appellant cites only to two pages of the record in support of his contention: the verdict form for
Count I, and the court’s finding during the punishment phase for Count II.
2 In his brief, appellant points us to a line of cases that only discuss preservation of error and a
defendant’s general right to be sentenced within the proper range, but none are specifically pertinent to
his issue on appeal.
8
citations to authorities and to the record.’” Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim.
App. 2017) (quoting Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)).
Therefore, appellant has waived this issue through inadequate briefing. See TEX. R. APP.
P. 38.1(i).
Even if the issue had been preserved, however, the punishment assessed for
Count II by the trial court was within the proper punishment range and the sentence was
not void. Appellant was convicted of unlawful possession of a firearm by a felon, a third-
degree felony, and the trial court sentenced the appellant to thirty years’ imprisonment.
The punishment range for Count II was enhanced due to appellant’s status as an HFO,
which increased his punishment range to that of a first-degree felony offense. See TEX.
PENAL CODE ANN. § 12.42(d). The two prior convictions used for enhancement were
alleged in the State’s notice to enhance punishment for Count II: unlawful possession of
firearm by a felon and forgery of a government instrument. See id. §§ 32.21, 46.04.
Appellant pleaded true before the trial court. Accordingly, the trial court sentenced
appellant within the appropriate punishment range at life, or for any term of not more than
ninety-nine years’ or less than twenty-five years’ imprisonment. See id. § 12.42(d).
IV. MODIFICATION OF JUDGMENT
The trial court orally pronounced that appellant’s sentences for Counts I and II shall
run concurrently. However, the judgment of conviction states: “THIS SENTENCE SHALL
RUN: N/A.” This Court may modify a judgment when we have the necessary information
to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.
App. 1993); Simmons v. State, 672 S.W.3d 821, 829 (Tex. App.—Corpus Christi–Edinburg
2023, no pet.). Accordingly, we modify the judgment to provide that the sentences for
9
Counts I and II shall run concurrently. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.
Crim. App. 1998) (“[W]hen there is a variation between the oral pronouncement of [a]
sentence and the written memorialization of the sentence, the oral pronouncement
controls.”).
V. CONCLUSION
We affirm the trial court’s judgment as modified.
CLARISSA SILVA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
24th day of October, 2024.
10