Castellano v. State

• Decision Date: 15 May 1991
• Docket Number: No. 3-89-209-CR,3-89-209-CR
• Parties: Juan Chavez CASTELLANO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 800

810 S.W.2d 800

Juan Chavez CASTELLANO, Appellant, v. The STATE of Texas, Appellee.

No. 3-89-209-CR.

Court of Appeals of Texas,

Austin.

May 15, 1991.

Lee Norton Bain, Georgetown, for appellant.

Ken Anderson, Dist. Atty., Sally Ray, Asst. Dist. Atty., Georgetown, for appellee.

Before POWERS, ABOUSSIE and ONION ^*, JJ.

ONION, Justice.

A jury found the appellant guilty of aggravated possession of marihuana, and assessed his punishment at thirty (30) years imprisonment.

Appellant advances three points of error. In points of error one and three, he challenges the sufficiency of the evidence to sustain the conviction. In his second point, appellant urges that the trial court erred by refusing to give a jury instruction on the accomplice witness rule. We will affirm the judgment of conviction.

Appellant and Armando Garza Solis were tried jointly for the same offense, ¹ though separately indicted. There were no motions for severance. We shall initially consider the second point of error. Its disposition will affect our discussion of the other points of error.

After the State rested its case at the guilt/innocence stage of the trial, appellant testified. Thereafter, the co-defendant Solis called his mother and sisters as witnesses, and then personally testified. The appellant requested an accomplice witness charge with regard to co-defendant Solis. ² The request was denied.

Appellant appears to argue that because Solis was indicted for the same offense, Solis was an accomplice witness as a matter of law. See Harris v. State, 790 S.W.2d 568, 579 (Tex.Cr.App.1989); cf. DeBlanc v. State, 799 S.W.2d 701, 709, n. 7 (Tex.Cr.App.1990). An accomplice witness' testimony must be corroborated under article 38.14 and the jury instructed only when the State calls the witness and relies on such witness' testimony. When the accused calls a witness and offers his testimony, such witness is not an accomplice witness whose testimony must be corroborated as required by the statute. See Brown v. State, 576 S.W.2d 36, 42 (Tex.Cr.App.1978); Cranfil v. State, 525 S.W.2d 518, 520 (Tex.Cr.App.1975). In Aston v. State, 656 S.W.2d 453 (Tex.Cr.App.1983), it was held error for the trial court to instruct the jury that a defense witness was an accomplice. Jenkins v. State, 484 S.W.2d 900, 902 (Tex.Cr.App.1972), also made clear that a defense witness is not an accomplice witness, and such witness' testimony incriminating the defendant could be considered in the assessment of the sufficiency of the corroboration of an actual accomplice witness' testimony.

Only recently the Court of Criminal Appeals dealt with a fact situation somewhat similar to the instant one. See Selman v. State, 807 S.W.2d 310 (Tex.Cr.App.1991). In Selman, the defendant and a co-defendant, Barnes, were separately indicted but were jointly tried before a jury. The defendant Selman testified in his own behalf. Barnes did not. The court submitted separate charges to the jury. Barnes asked for and received an instruction in his charge that the defendant Selman was an accomplice witness as a matter of law over Selman's objection that the same was in contravention of Article 38.05 of the Code of Criminal Procedure. The court held that Selman was injured when the same jury that was to determine his guilt or innocence heard the trial court describe him as "an accomplice as a matter of law," even though that the instruction was included only in the charge on Barnes' case. The court concluded that Selman had testified in his own behalf, and was not "formally" a witness for the State or for the co-defendant, and that the co-defendant was not entitled to the jury instruction.

In the instant case, the co-defendant Solis, testifying in his own behalf, was not a witness for the State or for the appellant. If the trial court had given the instruction requested in the joint trial, it may well have encountered Selman error. ³ We conclude that the trial court did not err in denying appellant's requested jury charge. The second point of error is overruled.

In points of error one and three, appellant contends that the trial court erred in overruling his motion for an instructed verdict, and that the evidence is insufficient to support the conviction. Appellant and Solis offered their defensive evidence after the motion was overruled. We shall, however, consider the contentions as sufficiency questions. See Madden v. State, 799 S.W.2d 683, 686 (Tex.Cr.App.1990).

About 1:00 a.m. on November 9, 1988, state troopers Will Crais and Andy Sheppard were on patrol north of Georgetown on Interstate Highway 35. A yellow 1976 Ford automobile passed them, and then weaved out of its marked lane and onto the shoulder of the road. The troopers stopped the vehicle. Solis, the driver, produced his driver's license. He stated that the car was borrowed from "a friend" and that he did not know anything about insurance on the car; that he was going to Dallas to visit a cousin, but he would not give the cousin's address; and that he knew only the first name of his passenger. Trooper Sheppard questioned the appellant-passenger in Spanish. Appellant stated he did not know the last name of the driver; that they were going to Dallas to look for work; that they were not visiting anyone in particular; and that he did not know the owner of the car.

The troopers checked and found that the car was registered to another individual and determined that the two men had given somewhat conflicting stories. Solis was then asked for and gave both oral and written consent to search the 1976 Ford. Trooper Crais found that the back seat was loose, and when he moved it, he smelled the odor of marihuana. In the side panels in the back of the automobile the trooper found bundles of what appeared to be marihuana. Thereafter, neither appellant nor Solis gave the officers any additional information. A subsequent search of the vehicle at the station revealed four more concealed compartments containing bundles of what appeared to be marihuana. Two compartments were in the kick panels in the front passenger portion of the vehicle, and two more were in "rocker panels" which ran the entire length of the car, the entrance to which was in a rear-wheel well. The chain of custody was established and the chemist testified that the substance found in the bundles was sixty pounds and eight ounces of marihuana, excluding the wrapping and the tape.

At the jail it was found that appellant had a calculator in his shirt pocket, an address book, and over $44.00 in cash. Solis had a pocket-size pen razor blade knife, and a wallet with a marihuana leaf emblem inscribed, "This Bud's For You."

Hollis Riggins, a twenty-two year veteran of the Texas Department of Public Safety, testified about sophisticated drug smuggling operations from the interior of the Republic of Mexico into the United States, including the use of concealed compartments. Riggins told the jury that officers "almost never find drugs on the persons of the smugglers" or "anything that would be exposed to any officer that inspected the car." Calculated according to Riggins' testimony, the value of marihuana discovered was $38,000.00.

The State offered evidence of the rather colorful title history of the 1976 Ford vehicle. The inoperable vehicle had been sold for $100.00 to a Sergio Manzano of LaJoya, Texas, on May 11, 1988, in a public salvage sale in Dallas by the J.D. Towing Service. On September 19, 1988, the Hidalgo County Tax assessor received payment for the transfer of the registration to Sergio Manzano of P.O. Box 53, LaJoya, Texas. Title was issued to Manzano on November 10, 1988, the day after appellant and Solis were stopped in Williamson County. The postmaster of LaJoya, a town of approximately 1200 people, testified that she had never heard of Manzano, and that Box 53 was registered to Baldemar Lozano and had no other authorized recipients.

The 38-year-old appellant testified that he lived in LaJoya near McAllen in the Rio Grande Valley; that he was originally from Mexico and had no formal education; that he was an unemployed construction worker the father of eight children, and drawing unemployment compensation at the time of the alleged offense. He admitted that he had known the co-defendant for about a year; that they lived about six blocks apart in LaJoya; and that they were good friends who ran around and went out drinking together. He insisted, however, he did not know Armando's last name.

Appellant related that Armando asked him to go to Dallas to look for work; that Armando picked him up in the 1976 Ford; that he never drove the vehicle; and that Armando awaken him just before they were stopped by the officers. He testified that he was unaware that marihuana was in the car; that he had never seen marihuana and did not know what it smelled like. On cross-examination, he admitted that he worked for his brother-in-law at a junk yard in LaJoya and that there was a mechanic there; that he hauled cars that had been purchased and helped "washing the iron or something;" that the junk yard sold used parts. He acknowledged that on occasion he used his brother-in-law's 1985 black Chevrolet pickup truck with a mobile phone in it, and that he had called Armando on that phone on November 7, 1988. He denied knowing a Sergio Manzano. Appellant also admitted he had paid cash for the gasoline that was put in the Ford at Kingsville, where he had fixed the dash lights on the car so they could see how fast they were traveling. He related that he found the calculator in the car and slipped it into his pocket and that he did not know how to use it. He could not remember having an address book. When reminded of his persistent efforts, while in jail, to obtain the book, he explained he wanted to contact a friend in California to assist him in obtaining an attorney.

The 24-year-old Armando Solis testified that he had known the appellant for about eighteen months prior to...