IN THE
TENTH COURT OF APPEALS
No. 10-06-00090-CR
Stephen Luis Castillo,
Appellant
v.
The State of Texas,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 10582-A
MEMORANDUM Opinion
A Limestone County Grand Jury charged Stephen Luis Castillo by indictment with the November 15, 2004 murder of Bill Flippin, Castillo’s father-in-law, by shooting him with a firearm. At trial, Castillo’s defense was that the shooting was either an accident or in self-defense, and the jury was instructed on those matters and on the lesser-included offense of manslaughter. The jury found Castillo guilty of murder and assessed a thirty-year prison sentence. Asserting seven points of error (issues), Castillo appeals. We will affirm.
Jurisdiction
Three issues (points one, two, and five) assert in essence that the State did not have jurisdiction over Castillo and that his conviction is thus void. This argument is based on the assertion that Castillo is “Autochthonous” (an indigenous native American, or a descendant thereof) and that the “White” government of Texas has no jurisdiction over him and cannot prosecute him for murder. The premise for Castillo’s argument that the State has no jurisdiction over him is that white immigrants displaced and dispossessed the Autochthonous and created their own government that excluded the Autochthonous from constitutional and statutory rights. In another sense, Castillo essentially contends that he is the victim of both a racist legal system and a conspiracy of his in-laws and the Limestone County Sheriff’s Office; as a result, Castillo has either no or a reduced culpability in the killing of his father-in-law. In support, Castillo cites antiquated case law (e.g., Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543, 5 L. Ed. 681 (1823); Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1856); and Elk v. Wilkins, 112 U.S. 94, 5 S. Ct. 41, 28 L. Ed. 643 (1884)), and recounts alleged historical racism and oppression against the Autochthonous by “Whites.”
At the time of the offense, Castillo (who was born in Mississippi and whose parents were born in the United States) was a citizen of the United States and a resident of Limestone County, Texas. Castillo considered his “race” to be Mexican or Mexican-American. He was registered to vote and had voted in Limestone County. The offense occurred in Limestone County. The District Court of Limestone County had subject matter jurisdiction over criminal felony actions and in personam jurisdiction over Castillo, and venue was proper in Limestone County. See Tex. Const. art. 5, § 8; Tex. Pen. Code Ann. § 1.04 (Vernon 2003); Tex. Gov’t Code Ann. § 24.179 (Vernon 2004); Tex. Code Crim. Proc. Ann. arts. 4.01, 4.05, 13.18 (Vernon 2005). Castillo cites no controlling authority suggesting otherwise. We overrule points one, two, and five.
Sufficiency of the Evidence
Point three contends that the evidence is legally and factually insufficient. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex. Crim. App. 1992). In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). If there is a reasonable doubt with respect to the existence of a defense, the accused must be acquitted. Tex. Pen. Code Ann. § 2.03(d) (Vernon 2003); Winkley v. State, 123 S.W.3d 707, 712 (Tex. App.—Austin 2004, no pet.). In other words, the trier of fact must find against the defendant on the defensive issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
Castillo was married to Flippin’s daughter Misty, and they had three children. They had been living in a home in Thornton owned by the Flippins. Castillo and Flippin had worked at the same silica plant for over nine years; Flippin had helped Castillo get a job there. Misty’s mother Flora routinely kept the Castillo children at the Flippin home in Kosse. Misty testified to numerous physical assaults by Castillo, who admitted to several of them, along with several extramarital affairs. One of those affairs led to a family confrontation in 2001 between Castillo and the Flippins in which Misty’s younger brother hit Castillo in the head with a baseball bat. Castillo did not report that assault to law enforcement.
As matters worsened between Castillo and the Flippins, in August 2004 the Flippins had a criminal trespass notice as to their Kosse residence served on Castillo. This angered Castillo, whose children were often with the Flippins in Kosse, and he frequently argued with Misty over it. Misty testified that Castillo said several times that he was going to kill Flippin. On the evening before Flippin’s murder, they argued again about the trespass notice, and Castillo assaulted Misty, who told him to move out or she would press charges. Castillo agreed to move out.
The next day, Castillo waited on a road near the silica plant to confront Flippin about the trespass notice as Flippin was leaving work. Castillo parked his truck just off the road behind a curve, and he said that when he saw Flippin’s truck approaching, he pulled his truck out to block Flippin’s lane to cause him to stop. Castillo got out of his truck and, with a pistol in his coat pocket, approached Flippin. During the confrontation, Castillo shot twice at Flippin, whose cause of death was a gunshot wound to the head. Castillo said that after Flippin had been shot, his truck accelerated and crashed into Castillo’s truck. Castillo ran to his truck and fled in it. Not long thereafter, Castillo was stopped by police in Groesbeck, and the murder weapon was found in his truck.
The State posited the theory that Castillo intentionally pulled out in front of Flippin to cause a collision between their trucks and bring about the confrontation. An investigating officer opined that Castillo’s truck was moving when it was struck by Flippin’s truck, and the State pointed to the damage to the two trucks, an otherwise unexplainable injury on Flippin’s forehead, and Flippin’s foot being found on the brake pedal as evidence of a collision that contradicted Castillo’s account.
Considering all of the evidence in the light most favorable to the verdict, the jury could rationally have found beyond a reasonable doubt that Castillo committed the offense of murder, rejecting his self-defense and accident claims. Jackson, 443 U.S. at 318-319, 99 S. Ct. at 2788-89; Zuliani v. State, 97 S.W.3d 589, 594-95 (Tex. Crim. App. 2003). Accordingly, the evidence is legally sufficient to support the guilty verdict.
In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder’s verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). “The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court “does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . .” Id. (quoting William Powers and Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Texas L. Rev. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called “thirteenth juror” to review the factfinder’s weighing of the evidence and disagree with the factfinder’s determination. Watson, 204 S.W.3d at 416-17.
When a defendant challenges the factual sufficiency of the rejection of a defense, we must review all of the evidence in a neutral light and ask whether the State’s evidence, taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance. Zuliani, 97 S.W.3d at 595. The State meets its burden of persuasion by proving its case beyond a reasonable doubt and thus need not produce evidence directly refuting the evidence of the defense. Id. at 594.
Self-defense is justified when a person “reasonably believes” that “force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.” Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). The use of deadly force is warranted only where “self-defense is justified under Section 9.31, a reasonable person would not have retreated, and when deadly force is reasonably necessary to protect against another’s use or attempted use of deadly force.” Bumguardner v. State, 963 S.W.2d 171, 173 (Tex. App.—Waco 1998, pet ref’d); see Tex. Pen. Code Ann. § 9.32(a)(1)-(3) (Vernon 2003).
Regarding Castillo’s claim that the shooting was an accident, the jury was instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, omission, or possession, and that conduct is not rendered involuntary because the person did not intend the results of his conduct. See Tex. Pen. Code Ann. § 6.01(a) (Vernon 2003).
Castillo testified that he was reminded by the Flippins of the baseball bat attack by their occasional use of a “ping” sound that purported to mimic the sound of an aluminum bat striking an object. He also testified to being subjected to racist epithets by the Flippins but admitted that he used epithets about them.
Castillo described the shooting and the events leading up to it as follows:
Well, I looked at him and he looked really angry. And whenever I seen that he come to a stop, I cut my truck off and I put it in second gear. I don’t put my emergency break on or nothing. I just leave it in gear. It’s standard.
And I stepped out of the truck and it was cold and I felt cold at the time, so I put my jacket on, my leather jacket that I had. I put my jacket on and I walked around to the driver’s side door of Bill’s truck, and I asked him why he put a restraining order on me.
And his response was, “Because you always go over there starting shit, you fucking bitch.”
At the time I asked him why he put the restraining order on me, I put my hands in my pocket and I forgot I left my .380 pistol in there. And whenever he said, “Because you go over there starting shit, you fucking bitch,” he said, immediately after that, “Mother fucker, I will kill you.”
And he was reaching with his right arm. He had his left arm in the window, and he was reaching with his right arm behind his lunchbox. I seen something in front of his lunchbox with a black handle. I thought it was a pistol. I thought he was reaching for a pistol.
And I pulled that out and I pointed it at his body and his lunchbox fell in the floor and it happened real quick. He just – I guess he seen that pistol pointing at his body and his response was – he picked his arm up like that and hit the bottom of my hand, and the gun discharged twice. It just went, “bo-boom,” real quick.
And after that, he fell over and the engine revved up and he ran into the side of my truck. And whenever he hit the side of my truck, it pushed it sideways a little bit. And then the engine idled back down, and I jumped in my truck through the passenger door and pulled the keys out of my pocket and cranked the truck up and left.
Castillo admitted that Flippin had never hit, slapped, or pushed him, but he said that after Flippin said that he would kill him and reached for an object with a black handle that Castillo thought was a pistol, Castillo thought Flippin was going to kill him. Castillo admitted that he never saw a pistol, but only a weapon-like object with a black handle, and that Flippin never actually grabbed the object. He said he did not retreat or flee because he feared that Flippin would have shot him in the back. While admitting that he had his finger on the trigger, Castillo denied intending to shoot his gun or to shoot Flippin and said that he fled the scene because he was scared. Castillo understood from a DPS firearm examiner that the .380 pistol had a ten-pound trigger pull, meaning that it took ten pounds of pressure to make it fire, and that the trigger had to be pulled twice.
One of the paramedics called to the scene saw a homemade wood chisel with a black handle in Flippin’s truck. The investigating officers found no weapon in Flippin’s
truck or cooler, but several witnesses acknowledged that the chisel could be used as a weapon.
We hold that the evidence is factually sufficient to support the jury’s rejection of Castillo’s claims of accident/involuntary conduct or self-defense beyond a reasonable doubt. See Saxton, 804 S.W.2d at 913-14. The jury was free to disbelieve Castillo’s claim that the gun fired only because Flippin bumped it with his arm. And deadly force was unnecessary under the circumstances. The only potential weapon in Flippin’s truck was a wood chisel, and no evidence indicates that Flippin attempted to use deadly force against Castillo. The jury was free to disbelieve Castillo’s testimony that Flippin said he would kill Castillo and that Flippin reached as if to grab a weapon. Castillo was armed and exercised deadly force where a reasonable person in his position would have used nondeadly force, if needed. See Kelley v. State, 968 S.W.2d 395, 399 (Tex. App.—Tyler 1998, no pet). A rational jury could have found that it was not reasonable for Castillo to believe that the use of deadly force was immediately necessary. See Bumguardner, 963 S.W.2d at 174. The jury was free to reject Castillo’s claim that he thought Flippin was going to kill him. See Saxton, 804 S.W.2d at 913-14.
Moreover, a reasonable person would have retreated. It was Castillo who instigated the confrontation and approached Flippin with a gun. It was for the jury to decide whether Castillo’s “failure to retreat was reasonable under the circumstances,” and the jury could have concluded that a reasonable person in Castillo’s situation would have retreated. See Alvarado v. State, 821 S.W.2d 369, 372-73 (Tex. App.—Corpus Christi 1991, no pet.). The jury was free to reject Castillo’s self-defense testimony. See Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001); Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We overrule Castillo’s third point.
Brady Complaint
In his fourth point, Castillo alleges that the State failed to disclose evidence pertaining to an alleged conspiracy between the Flippins and Limestone County law enforcement against Castillo. If anything, this point raises a Brady complaint: A defendant has a due process right to the disclosure of potentially exculpatory evidence that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). A prosecutor has an affirmative duty to turn over material, favorable evidence to the defense, and the failure to turn over such evidence violates due process. Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999). Favorable evidence is any evidence that, if disclosed and used effectively, may make the difference between conviction and acquittal, and it includes both exculpatory and impeachment evidence. Exculpatory evidence is testimony or other evidence that tends to justify, excuse or clear the defendant from alleged fault or guilt. Impeachment evidence is that which is offered to dispute, disparage, deny, or contradict. Id. (citing United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481 (1985); Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992)) (footnotes omitted). Evidence withheld by a prosecutor is material if there is “a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S. Ct. at 3383. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id.; Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.—Waco 1998, pet. ref’d). Nonetheless, evidence is not considered to be suppressed within the meaning of Brady if a defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of that evidence. See Dalbosco v. State, 960 S.W.2d 901, 903 (Tex. App.—Texarkana 1997, order), disp. on merits, 978 S.W.2d 236 (Tex. App.—Texarkana 1998, pet. ref’d).
The evidence that is apparently the subject of this point is a sheriff’s department call sheet made at the time the Flippins contacted the sheriff’s department and requested to speak to a deputy about getting the criminal trespass notice against Castillo. It contains nothing material to Castillo’s guilt or punishment, nor could it reasonably have been used to impeach any witness. Moreover, the information was provided to Castillo in a different format in the pretrial deposition of Sheriff Wilson. Because there is no possibility of a Brady violation regarding this call sheet, we overrule point four.
Evidentiary Rulings
Castillo’s sixth point complains that the trial court erred in excluding evidence of the alleged motive of Deputy Butler, the officer who served the criminal trespass notice on Castillo. A trial court’s exclusion of evidence is reviewed for abuse of discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005). A trial court abuses its discretion if its ruling falls outside the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).
Deputy Butler testified at length about serving the criminal trespass notice on Castillo. The trial court sustained the State’s objection to the following question: “How many Indian people are members of your department?” In a bill of exception, Deputy Butler denied that his race, the Flippins’ race, or Castillo’s race had anything to do with his service of the criminal trespass notice on Castillo. The trial court did not abuse its discretion in sustaining the State’s objection to the question. Point six is overruled.
Point seven asserts that the trial court abused its discretion in refusing to allow discovery (depositions) of Deputy Butler and Flippin’s widow Flora. In a criminal case, depositions may be taken if “good reason” exists. Tex. Code Crim. Proc. Ann. art. 39.02 (Vernon Supp. 2006). A trial court has broad discretion in ruling on an article 39.02 motion. At his bond reduction hearing, Castillo’s attorney called Flora as a witness. He was also allowed to informally interview both Deputy Butler and Flora at a pretrial hearing, and later Castillo was allowed to send Flora interrogatories, which she answered under oath. The trial court did not abuse its discretion in refusing to allow the depositions of Deputy Butler and Flora Flippin. We overrule point seven.
Having overruled all of Castillo’s points, we affirm the trial court’s judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed April 4, 2007
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