Ismael Castillo v. State

NUMBER 13-19-00567-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ISMAEL CASTILLO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Benavides
A jury convicted appellant Ismael Castillo of capital murder and engaging in
organized criminal activity, and he received a mandatory life sentence without the
possibility of parole. See TEX. PENAL CODE §§ 19.03(a)(2), 71.02(a)(1). In what we have
reorganized as three issues, Castillo contends the trial court made two evidentiary errors
and one jury charge error, any one of which entitles him to a new trial. We affirm.
I. BACKGROUND
Around noon on March 14, 2018, Corpus Christi police responded to reports of a
shooting on Coleman Street. Deandre Mathis and Christopher Vincent were selling drugs
from the residence when two males entered the home and shot them. Mathis later
succumbed to his injuries, but Vincent survived. Surveillance video captured two men
entering the residence and a third person driving the getaway vehicle. The surveillance
video captured the face of one of the men, later identified by police as Ricardo Acuna, but
not the other.
After police released images of the getaway vehicle and Acuna to the media, they
received an anonymous tip that led them to a nearby tire shop. Security video from the
shop placed Castillo, Acuna, and Ariana Carbajal in the getaway vehicle approximately
an hour and a half before the shooting. Jamie Morin, the vehicle’s owner, testified that
Castillo stole the vehicle from him prior to the shooting and then told him after the shooting
that he could find the vehicle in Mathis, Texas.
In exchange for a reduced sentence, Carbajal testified as an accomplice witness
for the State. According to Carbajal, she, Castillo, and Acuna spent the evening of March
13 and the early morning hours of March 14 smoking methamphetamine. They spent the
morning of March 14 driving around looking for more. They picked up two other individuals
who identified the Coleman Street residence as a potential place to rob. After driving by
the Coleman Street residence, the five of them drove to a nearby convenience store
where Castillo and Acuna went inside. Security video from the convenience store
captured Castillo and Acuna together inside the store.
2
After they dropped off the other two individuals, they returned to the Coleman
Street residence. According to Carbajal, Castillo and Acuna planned the robbery. Carbajal
dropped Acuna off down the street from the residence armed with a pistol. After he
entered the residence under the guise of a drug buy, Carbajal pulled up to the house
where Castillo got out of the vehicle and entered the house with an assault rifle. Carbajal
heard several shots, and then Castillo and Acuna ran out of the house, jumped in the car,
and yelled at her to “go[!]” They came away with $39. Afterwards, they traveled to various
locations, disposing of their guns, clothes, and vehicle along the way, before fleeing to
Arlington.
Vincent, the surviving complainant, testified that the first male entered with a pistol
and shot Mathis, and then the second male entered with an “AR” and shot him. Vincent
positively identified Castillo in the courtroom as one of the shooters based on a tattoo
under Castillo’s left eye. However, he claimed that Castillo, not Acuna, was the first
shooter with the pistol.
Two weeks after the shooting, Pamela Mungina stated in a videotaped interview
with police that Castillo, Acuna, and Carbajal stayed with her at her house in Mathis the
night after the shooting, and she overheard Castillo on the phone trying to sell an assault
rifle. However, at trial, she stated she currently had no recollection of the event and that
she was high when she made the video statement. Jose Alaniz and Robert Lopez, both
jailhouse informants, testified that Castillo admitted to them his involvement in the
shooting. Castillo challenged the credibility of each, suggesting their testimony was
motivated by self-interest.
3
Castillo testified in his defense. He acknowledged that he was with Carbajal and
Acuna at the tire shop and convenience store, but he claimed they dropped him off at his
cousin’s house minutes before the shooting. He said that he later visited a Sonic and
Whataburger and saw various people throughout the day, but he did not offer any other
evidence to corroborate his account. The jury convicted Castillo, and this appeal ensued
II. EVIDENTIARY RULINGS
By his first issue, Castillo complains the trial court erred by excluding the
introduction of a prior inconsistent statement by a witness that had yet to testify. By his
second issue, Castillo contends the trial court erred in admitting a letter Carbajal wrote as
a prior consistent statement.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
A trial court abuses its discretion when its decision lies outside the zone of reasonable
disagreement. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
B. The exclusion (initially) of Vincent’s prior inconsistent statement
During its opening statement, the State told the jury that Vincent, the surviving
complainant, would positively identify Castillo as one of the shooters. The State’s first
witness, Detective Brenda Garza, interviewed Vincent at the hospital approximately two
weeks after the incident, and Vincent told her that one of the two shooters wore a mask
(the person identified as Acuna was not wearing a mask in the security videos). As he
later explained, Castillo knew from the detective’s report that Vincent had not identified
4
him in the interview or mentioned an identifying tattoo under his left eye, and he sought
to elicit testimony to that effect during the detective’s cross-examination. The State timely
raised hearsay objections to Castillo’s line of questions and pointed out that Vincent would
be testifying later in the trial. Castillo described the purpose of these questions as “a little
prior impeachment.” The trial court sustained the State’s objections.
Castillo acknowledges in his brief that these questions were designed to “discredit”
Vincent’s anticipated identification of Castillo as the other shooter. According to Castillo,
“[a] complete cross-examination confrontation of Detective Garza prior to Vincent’s
testimony would have undermined his credibility.” (Emphasis added). We are not aware
of a right to impeach a witness with a prior inconsistent statement before the witness has
even testified, and Castillo has pointed us to no such authority. Instead, it is self-evident
that the witness must testify before the right to impeach arises. See TEX. R. EVID. 607
(“Any party, including the party that called the witness, may attack the witness’s
credibility.”); id. R. 613(a)(1) (“When examining a witness about the witness’s prior
inconsistent statement—whether oral or written—a party must first tell the witness: (A)
the contents of the statement; (B) the time and place of the statement; and (C) the person
to whom the witness made the statement.”); McGary v. State, 750 S.W.2d 782, 786 (Tex.
Crim. App. 1988) (“The proper predicate for impeachment by prior inconsistent statement
requires that the witness first be asked if he made the contradictory statement at a certain
place and time, and to a certain person.” (quoting Huff v. State, 576 S.W.2d 645, 647
(Tex. Crim. App. 1979))). Even then, the prior inconsistent statement can only be offered
for the limited purpose of challenging the witness’s credibility unless the statement meets
5
some hearsay exception. Ramirez v. State, 987 S.W.2d 938, 944 (Tex. App.—Austin
1999, no pet.) (citing Jernigan v. State, 589 S.W.2d 681, 692 (Tex. Crim. App. 1979)).
Here, Vincent’s prior statement to Detective Garza about what he observed, made
approximately two weeks after the incident and in aid of her investigation, constituted
hearsay. See TEX. R. EVID. 801(d); see also Benson v. Chalk, 536 S.W.3d 886, 896 (Tex.
App.—Houston [1st Dist.] 2017, pet. denied) (noting that “most prior inconsistent
statements are . . . classified as hearsay” (quoting 1 Steven Goode, et al., Texas Practice
Series: Guide to the Texas Rules of Evidence: Civil and Criminal § 607.2 (4th ed. 2016))).
And because Vincent had yet to testify, his prior inconsistent statement could not be
offered for the limited purpose of impeachment. See TEX. R. EVID. 613(a)(1); McGary, 750
S.W.2d at 786. Thus, the trial court did not error in sustaining the State’s hearsay
objections.
Moreover, after Vincent testified during cross-examination that he did inform
Detective Garza about the identifying tattoo, Castillo re-called Detective Garza during his
case-in-chief and elicited the very impeachment testimony he complains was excluded:
[COUNSEL]: Okay. [Vincent] gave you descriptions but weren’t they
pretty general? Didn’t he say the most he could say
was about identity or faces is that one had a green
bandanna?
[GARZA]: Yes, sir.
[COUNSEL]: And he did not tell you anything about how he could
identify 100 percent sure anybody because of a tattoo,
did he?
[GARZA]: Correct.
[COUNSEL]: Correct he did not tell you that?
6
[GARZA]: Right.
Thus, even if the trial court erred by initially excluding the prior inconsistent
statement, that error was subsequently cured. Cf. Siqueiros v. State, 685 S.W.2d 68, 72
(Tex. Crim. App. 1985) (standing for the proposition that the erroneous admission of
evidence can be cured by the subsequent admission of countervailing evidence). In other
words, Castillo cannot demonstrate that he was harmed by the alleged error. See TEX. R.
APP. P. 44.2. We overrule Castillo’s first issue.
C. The admission of Carbajal’s letter as a prior consistent statement
Under Texas Rule of Evidence 801(e)(1)(B), statements that are consistent with
the declarant’s testimony and offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive are not hearsay. TEX. R.
EVID. 801(e)(1)(B). “The trial court has substantial discretion to admit a prior consistent
statement even if there has been ‘only a suggestion of conscious alteration or
fabrication.’” Fears v. State, 479 S.W.3d 315, 332 (Tex. App.—Corpus Christi–Edinburg
2015, pet. ref’d) (quoting Hammons v. State, 239 S.W.3d 798, 804–05 (Tex. Crim. App.
2007)). There is no bright-line rule to distinguish between a general challenge to the
witness’s memory or credibility and a suggestion of conscious alteration or fabrication;
the trial court should determine if the cross-examiner’s question or the tenor of the
questioning would “reasonably imply an intent by the witness to fabricate.” Id. (quoting
Hammons, 239 S.W.3d at 805). To fall within this hearsay exception, the prior consistent
statement must have been made before the improper influence or motive arose. See
Haughton v. State, 805 S.W.2d 405, 407–08 (Tex. Crim. App. 1990).
7
The following exchange during Carbajal’s cross-examination is at issue:
[COUNSEL]: Let’s just kind of start with where you left off. You will
lose your deal if you lie, right?
[CARBAJAL]: Right.
[COUNSEL]: And who decides whether you lie or not? It is the
prosecutor, right?
[CARBAJAL]: Right.
[COUNSEL]: You know what the prosecutor seems to believe the
evidence shows is that [Castillo], [Acuna], and yourself
did this, right?
[CARBAJAL]: Yes.
[COUNSEL]: So it would be a lie to him if you say something different
than that; is that correct?
[STATE]: I am going to object. . . .
[COURT]: I am going to overrule the objection. . . .
[COUNSEL]: So he would probably decide you were lying if you say
something that says that Castillo, Acuna and yourself
were not involved in this; is that right?
[CARBAJAL]: I don’t understand what you are trying to say.
[COUNSEL]: Well, the person that decides whether or not you are
telling the truth or not to get your deal; is the
prosecutor, right?
[CARBAJAL]: Right.
[COUNSEL]: So the truth that we are dealing with is what the
prosecutor believes the evidence shows, is that fair
enough?
[CARBAJAL]: Yeah.
During redirect, the State sought to introduce a letter Carbajal wrote to the trial court in
8
2018, prior to her plea agreement with the State. Castillo objected to the letter based on
relevance, hearsay, and bolstering. The State argued the letter was admissible under
Rule 801(e)(1)(B) to rebut Castillo’s suggestion of recent fabrication. The trial court
overruled Castillo’s objection and allowed Carbajal to read the entire letter for the jury. In
the letter, Carbajal briefly acknowledges her role in the shooting as the driver, but the
letter is largely a plea for leniency based on what Carbajal sees as mitigating
circumstances. Nether Acuna nor Castillo are mentioned by name, and their role in the
shooting is only implied in passing.
We find the implication raised by Castillo’s questioning to be straightforward—
Carbajal aligned her testimony with the State’s theory of the case to receive and maintain
her plea bargain agreement with the State. Indeed, Castillo posited that although the
agreement required Carbajal to tell the truth, the truth “is what the prosecutor believes the
evidence shows.” Nevertheless, Castillo argues on appeal that he “was not implying any
recent fabrication or recent motive to lie” because “Carbajal testified exactly as she had
told the police on the day of her arrest in 2018 when confronted with the tire store video.”
While it is true that Carbajal testified during direct that she positively identified Castillo as
a shooter on the day of her arrest, there was no recording of Carbajal’s interrogation
admitted into evidence or any other corroborating evidence to support her version of
events. If Castillo’s charge of fabrication was correct, then none of Carbajal’s testimony
implicating Castillo was credible, including what she claimed she told police at the time of
her arrest. Deferring to the trial court’s “substantial discretion,” we conclude the trial court
did not err in admitting the letter. Fears, 479 S.W.3d at 332. We overrule Castillo’s second
9
issue.
III. JURY CHARGE ERROR
By his third issue, Castillo argues the jury charge was unconstitutional because it
did not require jury unanimity on the underlying felony. The jury charge explained that a
person commits the offense of capital murder “if the person intentionally causes the death
of an individual in the course of committing or attempting to commit the offense of robbery
or burglary.” (Emphasis added). As Castillo acknowledges, this is a well-settled area of
Texas law: a jury does not need to be unanimous concerning which underlying felony the
defendant was in the course of committing when the murder occurred. See, e.g., Gardner
v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009) (reaffirming Kitchens v. State, 823
S.W.2d 256 (Tex. Crim. App. 1991)). We overrule Castillo’s third issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
25th day of February, 2021.
10