IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
AUGUST 29, 2005
______________________________
RICARDO CASTILLO, SR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 64TH DISTRICT COURT OF SWISHER COUNTY;
NO. A3865-0404; HONORABLE ROBERT W. KINKAID, JR., JUDGE _______________________________
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONAppellant Ricardo Castillo, Sr., appeals his conviction of aggravated sexual assault of a child and indecency with a child. We agree with appointed appellate counsel's conclusion that the record fails to show any meritorious issue which would support the appeal, and affirm the trial court's judgment.
The Swisher County Grand Jury returned a five-count indictment against appellant alleging that on or about February 21, 2004, appellant did then and there:
COUNT ONE
intentionally or knowingly cause the penetration of the female sexual organ of B.F., a child who was then and there younger than 14 years of age and not the spouse of the defendant by the defendant's finger,
COUNT TWO
did then and there, with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly engage in sexual contact with B.F. by touching the breast of B.F., a child younger than 17 years and not the spouse of the defendant,
COUNT THREE
did then and there, with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly engage in sexual contact with B.F. by touching the genitals of B.F., a child younger than 17 years and not the spouse of the defendant,
COUNT FOUR
did then and there, with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly expose the defendant's genitals, knowing that B.F., a child younger than 17 years and not the defendant's spouse, was present,
COUNT FIVE
did then and there, with the intent to arouse or gratify the sexual desire of said defendant, intentionally or knowingly cause B.F., a child younger than 17 years and not the defendant's spouse, to expose her genitals.
The jury found the appellant guilty on Counts One, Two and Three and not guilty on Counts Four and Five. After hearing evidence on punishment, the jury found the allegation in the enhancement paragraph of the indictment to be not true and assessed appellant's punishment for the offense of aggravated sexual assault of a child at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of five years, and sentenced appellant to additional terms of confinement of two years each on the indecency with a child convictions under Counts Two and Three.
Appellant's appellate counsel has filed a brief stating that he has carefully reviewed the record in this case and concludes there is no reversible error and that the appeal is frivolous. See Anders v. California, 386 U.S. 738, 744-45 (1967). The brief discusses the factual and procedural history of the case and evidence presented. Counsel also has filed a motion to withdraw and, by letter, informed appellant of his right to file a pro se brief. Johnson v. State, 885 S.W.2d 641, 645 (Tex. App.-Waco, 1994, pet. ref'd).
By letter dated February 3, 2005, this court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel, granting him until March 3, 2005 to do so. This court's letter also reminded appellant to contact his counsel if he needed to review any part of the appellate record to prepare a response. On February 25, 2005, appellant filed a motion requesting an additional three months to file his brief. This court granted appellant's motion in part and extended the deadline for appellant's brief to April 4, 2005. Appellant has not filed a brief or other response.
In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record. Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.-San Antonio 1997, no pet.). If this court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991).
In his Anders brief, counsel for appellant summarizes the testimony of each witness called during both the guilt/innocence phase and the punishment phase of trial, including the testimony of the victim and appellant. In conformity with counsel's obligation to support the appeal to the best of his ability, Johnson, 885 S.W.2d at 645, the brief raises the issue whether the evidence was legally and factually sufficient for the jury to find that appellant committed the crimes as alleged in the indictment. After reviewing the evidence and setting forth the standards for appellate review of the legal and factual sufficiency of the evidence, counsel concludes the evidence is sufficient.
The record reflects conflicting versions of the events leading to appellant's prosecution. As noted, both appellant and the victim, who was thirteen at the time of the offense but fourteen by the time of trial, testified. The jury, being the judge of the facts and credibility of the witnesses, may choose to believe all, some, or none of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). A jury's decision is not manifestly unjust merely because it resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).
Our review convinces us that appellate counsel conducted a complete review of the record. We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Stafford, 813 S.W.2d at 511. Upon review of the record, we also conclude the evidence was legally and factually sufficient to support appellant's conviction beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating that the standard for judging legal sufficiency questions is whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt); Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004) (stating the standard for judging factual sufficiency questions is whether, when considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt). We agree this appeal presents no meritorious grounds for review. We grant counsel's motion to withdraw and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
60; A search of the car unearthed a 6.5 ounce baggie of marijuana in the middle console. This resulted in appellant’s arrest and transportation to jail. While being transported and after realizing that Padilla had been arrested too, appellant said to the officer: “you know all that shit is mine.” Appellant also stated that she knew nothing of the drugs.
The State called Padilla to testify at trial. However, she invoked her Fifth Amendment right against self-incrimination. Despite this, the State continued to propound questions to her about prior statements made by her. Those statements purportedly involved appellant’s tossing the baggie of cocaine to her when the police stopped him and about the cocaine and marijuana not belonging to her.
Issue One - Sufficiency of the Evidence to Link the Controlled Substance
In his first issue, appellant contends the evidence is insufficient to link him to the drugs found. This is so because the drugs were found in the passenger’s coat pocket. We overrule the issue.
AuthorityThe standards of review for legal and factual sufficiency are found in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to those cases for review.
In addition to appellant’s statement to the officer that the “shit” or drugs were his, other evidence revealed that 1) appellant was present in the car where the drugs were found, 2) the smell of marijuana escaped from the car when stopped, 3) other contraband was found in the console in proximity to where appellant had been seated, 4) appellant had money on him in denominations that are frequently used to purchase drugs, 5) appellant took longer than necessary to stop his car when the officer activated his lights, and 6) the cocaine found was in quantities for sale and not for personal use. These facts are sufficient to link appellant to the drugs and show that he exercised care, custody, or control over them.
We also recognize that appellant offered an alternative theory for the jury's consideration. That is, he attempted to show that Padilla was responsible for the cocaine since it was in her coat. Yet, the jury was not required to believe the theory, see Evans v. State, 202 S.W.3d 158, 166 (Tex. Crim. App. 2006), and we cannot say that its resolution of the matter undermines our confidence in the verdict. In short, the evidence is both legally and factually sufficient.
Issue Two - Fifth Amendment Right of Co-Defendant
In his next issue, appellant contends that the trial court erred by allowing the State to continue to question Padilla about prior statements made by her after she invoked her right against self-incrimination. According to appellant, the questions were designed to give the inference that appellant possessed the drugs up until the time of the stop at which time he tossed them to Padilla to put in her pocket. We overrule the issue.
We initially note that the State conceded error in this matter. It nonetheless believes the error to be harmless. We agree.
To assess the likelihood that the jury's decision was adversely affected by the questioning, we consider the entire record, the other evidence admitted, the nature of the evidence supporting the verdict, and the character of the error in light of the other evidence in the case. Motilla v. State, 78 S.W.3d 352, 357-58 (Tex. Crim. App. 2002) (evaluating harm from erroneously admitted evidence). We also consider the arguments of counsel and the extent to which the State emphasized the improper evidence. Id. at 358; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
As stated earlier, appellant admitted that “all” of the drugs belonged to him, or so a reasonable jury could conclude. That admission carries much weight. So too was he found in possession of a large amount of money, as would one dealing in drugs. That he owned the car from which the smell of marijuana escaped and personally possessed marijuana is other evidence of import, and when considered in totality, the evidence of appellant’s guilt was and is quite substantial.
Next, the State did refer to Padilla in its closing argument. Those comments consisted of the prosecutor saying, “if you remember, Valerie Padilla walked into this courtroom under subpoena, and every question that was asked of her, her response was, ‘I take my 5th Amendment.’” After that, no other mention was made of Padilla or her invocation of the Fifth Amendment. We also note that in calling her, the State may have been risking appellant’s conviction. Simply put, it was playing with a two-edged sword. It is not farfetched for a lay juror to question why she would opt to remain silent if she did nothing wrong. So, her invocation of the Fifth Amendment could well have led the jury to believe that she actually possessed the cocaine, not appellant. Given that, the tactic may have posed more risk to the State than to appellant.
We also note that the relevant questions asked of Padilla (which resulted in her invocation of the Fifth Amendment) were rather exculpatory in nature. That is, they could be viewed as tending to reduce or negate her own culpability. For instance, they consisted of her being asked whether 1) “he [appellant] threw [her] a package, a clear plastic package, containing crack cocaine” and told her to hold it, 2) he told her “‘[h]ere, grab this,’” and she put the package in the pocket of her coat, 3) she told the police that she knew nothing about the cocaine or the marijuana, 4) she possessed money when searched (which she did not), 5) appellant continued to drive though being directed to stop and during which period he threw the package of cocaine to her, and 6) she held the drugs to protect appellant with whom she was having a relationship.
After considering the foregoing, we cannot say that the purported error either affected appellant’s substantial rights or left us unable to conclude, beyond reasonable doubt, that it did not affect the jury’s decision. In sum, we find no harm. This, however, is not to be viewed as indication that we approve of any litigant’s effort to engage in or create error simply because other factors may somehow ameliorate the conduct’s affect. Harm is assessed on a case-by-case basis. The pertinent indicia encompassed in the next case may well call for a different result, especially if the accused does not admit that the drugs were his.
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Chief Justice
Do not publish.