Castaldo v. State

• Decision Date: 01 November 2000
• Docket Number: No. 10-99-147-CR,10-99-147-CR
• Citation: 32 S.W.3d 413
• Parties: (Tex.App.-Waco 2000) MICHAEL T. CASTALDO, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 413

32 S.W.3d 413 (Tex.App.-Waco 2000)

MICHAEL T. CASTALDO, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-99-147-CR

IN THE TENTH COURT OF APPEALS

November 1, 2000

From the County Court Navarro County, Texas Trial Court # 45797

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Before Chief Justice Davis, Justice Vance, and Justice Gray.

OPINION

BILL VANCE, Justice.

During the course of Michael Castaldo's trial on possession of marihuana charges, the trial court allowed the State to present testimony (1) detailing the actions of the dangerously intoxicated driver of the vehicle in which Castaldo was a passenger and (2) showing that Castaldo may have been intoxicated by the use of marihuana and alcohol. Because the evidence of the actions of the driver has character-proving tendencies, we conclude that the trial court erred by overruling Castaldo's objection under Rule of Evidence 404(b) and, finding that he was harmed by the error, will reverse the judgment. Although the evidence of Castaldo's intoxication was admitted for a limited purpose under Rule of Evidence 404(b), the trial court refused Castaldo's request that the jury be instructed in the charge that it could consider the evidence only for that limited purpose. We conclude that a limiting instruction was required and will reverse Castaldo's conviction for the lack of that instruction as well.

The Offense

The charge against Castaldo arose out of an early morning traffic stop by Navarro County Sheriff's Deputy Scott Dyson. Dyson was allowed to testify in detail about the events leading up to Castaldo's arrest. He testified that he had been alerted to watch for a possible intoxicated driver headed south on Interstate Highway 45. Before the automobile reached his location, though, the dispatcher advised Dyson that the vehicle had turned around and was headed north in the southbound lane of I-45. Dyson activated his emergency lights and siren and drove northward on the service road to try to find the vehicle. After he located the vehicle, a Jeep Cherokee, he paced it on the service road for approximately two and one-half miles before the driver of the Jeep stopped. During the two and one-half mile "chase," Dyson used the public address equipment on his patrol car, apparently to order the vehicle to pull over, and illuminated the Jeep with a spot light. He could see the driver of the vehicle looking over at him during the time that he was paralleling the Jeep. In response to a question concerning other traffic on the highway, Dyson testified that "[t]here were several vehicles coming at [the Jeep]. Eighteen-wheelers were having to dodge it. I, at one point, thought we had already had a wreck."

After the Jeep stopped, Dyson got the driver out and turned off the engine. He pointed his pistol at the passenger, whom Dyson identified as Castaldo, and ordered him to put his hands on his head. When Dyson was removing the driver from the Jeep, he could smell the odor of burnt marihuana and alcoholic beverages. Dyson held Castaldo at gun point until his back up, Corsicana Police Officer Todd Morris, arrived. Morris got Castaldo out the Jeep, handcuffed him, and had him stand at the back of the vehicle while Dyson searched the vehicle. During the search, Dyson found a green tupperware container, which contained 0.94 grams of marihuana, in the center console and a small wooden box, which contained 0.01 grams of marihuana, on the passenger-side floorboard. Dyson testified that Castaldo's eyes were "glassy, bloodshot," and that he was "[u]nfocused, didn't realize where he was" when he was first confronted. Dyson also testified that although Castaldo's breath did not smell like marihuana, it did smell like alcoholic beverages. Furthermore, in Dyson's opinion, Castaldo was intoxicated by a combination of alcohol and marihuana. The driver was arrested for driving while intoxicated and possession of marihuana, and Castaldo was arrested for possession of marihuana.

Officer Morris testified that when he arrived at the scene, Dyson already had the driver out of the Jeep, so he dealt with Castaldo, the passenger. He ordered Castaldo out of the vehicle and, when Castaldo got out, Morris noticed that he "had red, bloodshot eyes, unsteady balance, [and] a strong odor of an alcoholic beverage on his breath."

The Proceedings at Trial

On the morning of the trial, Castaldo urged the court that:

basically, any offense other than possession of marijuana falls under this extraneous offense exception. We do not feel that it would be relevant. . . . Further, trying to boot strap any evidence that falls under the probable cause to stop [the driver] under the DWI stop or any evidence about [the driver's] conduct in this would be other bad acts. Would be inadmissable under rule 404(b).

[W]e are not trying the probable cause of the stop to the jury. We are not trying [the driver's] DWI to the jury. All that is at issue today for trial is whether or not my client was in possession of marijuana. To intermix facts, to cloud the issues by the State about the DWI -- alleged DWI, the DWI stop, the reasons for arrest of another individual, have nothing to do with the possession of marijuana.

Now, 404(b) is in place to protect criminal defendants who are on trial so they can be tried for the case the State has brought against them. Today we are trying the possession of marijuana case. Any evidence about any other crimes, wrongs, or bad acts, specifically, public intoxication at the time -- at that time would be inflammatory evidence and would be very, very prejudicial and would likely be harmful to my client in the outcome of this case.

The court granted Castaldo's motion to exclude any evidence relating to his own public intoxication, but refused to exclude the evidence regarding the driver's DWI stop, ruling that "I think that probably is background evidence and basically to complete the picture of the facts in the case, I don't think that you can do that without getting into that in some regards as to why the stop -- the initial stop, what was the reason for the initial stop."

During the trial, Castaldo objected on the basis of Rule 404(b) of the Texas Rules of Evidence when the State introduced evidence about the alert given to Dyson to be watching for a suspected drunken driver and to Dyson's testimony that the vehicle had reversed course and was driving north in the southbound lane of I-45. Both objections were overruled. When the court overruled his objection to the evidence regarding the wrong-way driving, Castaldo asked that the court give the jury an instruction limiting the purpose for which the jury could consider the evidence. The court refused to give the instruction when the evidence was admitted, saying that it would "consider that at the time we take up the charge."

Later during the trial, the court reversed its ruling excluding evidence regarding Castaldo's intoxication and allowed the State to recall Dyson so he could testify that Castaldo was intoxicated. When Dyson took the stand, the court instructed the jury:

Ladies and gentlemen, before the officer testifies, let me give you what's called a limiting instruction as to the possible testimony that this witness may give. There may be evidence that he gives that the reason I'm allowing to do this is to aid you in passing upon the weight of -- of the evidence that has been presented in the case. It's not being admitted as evidence as far as any kind of conviction or any kind of extraneous bad act, but it is -- I'm allowing any kind of testimony like this just to allow you to aid you in the context and background of these circumstances in this case.

And at whatever time you do deliberate, you will have -- again it is just to aid you to pass upon the weight to be given the testimony and the evidence.

Dyson then testified that Castaldo was intoxicated by a combination of alcohol and marihuana.

During the charge conference, the court read a proposed limiting instruction that it had prepared. The State objected to any instruction limiting the jury's use of any of the evidence on the basis that all of the evidence was "res gestae"¹ of the offense and that intoxication was "relevant" to the possession of marihuana. Ultimately, the court agreed with the State and refused to give the jury a limiting instruction regarding any of the evidence. The jury convicted Castaldo of the offense of possession of marihuana and assessed punishment of 180 days in the county jail, probated, and a $2,000 fine. Tex. Health & Safety Code Ann. § 481.121 (Vernon Supp. 2000); Tex. Pen. Code Ann. § 12.22 (Vernon 1994).

Castaldo's Appeal

Before us, Castaldo raises five points of error. We will discuss only the two complaints that relate to the admissibility of the evidence regarding the actions of the driver of the Jeep and the need for a limiting instruction in the jury charge.

The DeGarmo doctrine

Before we consider Castaldo's points of error, we must dispose of the State's initial response to all of Castaldo's complaints. According to the State, Castaldo waived any error which occurred in the guilt-innocence phase of the trial by confessing his guilt in his testimony during the punishment phase of his trial. Leday v. State, 983 S.W.2d 713, 724 (Tex. Crim. App. 1998); DeGarmo v. State, 691 S.W.2d 657, 660-61 (Tex. Crim. App. 1985). The State relies on an exchange that occurred during cross-examination:

Q [By the State]: Mr. Castaldo, are you sorry for what the jury found that you did?

A [By Castaldo]: I'm sorry. I respect the decision of the jury. I accept responsibility for my actions, and I accept responsibility for putting myself in the situation I put myself in.

Although the State urges us to find that this is a confession of guilt, we do not read his testimony that way. To trigger the application of the DeGarmo doctrine, as modified by Leday, the statement of guilt must be a ...