Castello v. State, 01-16-00742-CR
| Decision Date | 05 June 2018 |
| Docket Number | NO. 01-16-00742-CR,01-16-00742-CR |
| Citation | 555 S.W.3d 612 |
| Parties | Brian CASTELLO, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Jani Maselli Wood, 1201 Franklin St, 13th Floor, Houston, TX 77002, for Appellant.
Kim Ogg, District Attorney, Katie Davis, Assistant District Attorney, Harris County, Texas, 1201 Franklin, Suite 600, Houston, TX 77002, for Appellee.
Panel consists of Justices Jennings, Massengale, and Caughey.
After admitting that he strangled his wife, Brian Castello pleaded guilty to murder, a first-degree felony. TEX. PENAL CODE § 19.02(c). The trial court sentenced Castello to 55-years' confinement. Castello appeals, arguing that (1) the trial court erred by sentencing him without (a) a drug and alcohol evaluation, and (b) a psychological evaluation; or, in the alternative; (2) his trial counsel was ineffective for failing to preserve this issue for appellate review; and (3) the fees imposed on him for summoning witnesses and mileage violated his confrontation rights and his right to compulsory process. Because we conclude that Castello forfeited his first claim, his counsel was not ineffective, and he has not shown that any witness fees in this case were unconstitutional as applied to him, we affirm.
Castello pleaded guilty to the murder of his wife, Damaris Castello. He had no agreed recommendation as to punishment, and the State prepared a presentence investigation (PSI) report.
Before sentencing Castello, the trial court held a sentencing hearing.
At the sentencing hearing, the State called four witnesses.
First, Detective T.R. Ferguson testified. He stated that he is employed in the homicide division of the Houston Police Department and he was also employed there on November 9, 2014. He remembered receiving a call on that date regarding a homicide at an apartment. Upon arriving at the scene, Detective Ferguson noticed a strong odor that he described as "the odor of death." After receiving consent to enter, Detective Ferguson went inside the apartment, where he found the deceased victim, wrapped in a comforter, in the closet. The State submitted into evidence photographs of the scene and the deceased.
Detective Ferguson testified that he identified Castello as a suspect and interviewed him. Castello told him that the police would "find out what happened sooner or later," and he fell asleep in the interview room. Two days after the incident, Detective Ferguson interviewed Castello again. At that interview, Castello confessed to murdering Damaris. According to Detective Ferguson, Castello said he "always knew he was going to kill someone but that he didn't know when."
The victim’s mother, Silvia Espinoza, and her oldest daughter, Maria Escobar, also testified. They emphasized the effect Damaris’s death had on them and how much they missed her.
Damaris’s brother, Enoc Gonzales, testified as well. He stated that in November 2014, he tried to call Damaris but could not reach her. So, he (along with his brother, cousin, and uncle) went to her apartment, which she shared with Castello. Upon arriving, he asked Castello where Damaris was. Castello responded that he did not know and that he and Damaris had had an argument. Enoc testified that he knew Castello was lying because Damaris would never leave her children behind, but they were there without her.
According to Enoc, he, his brother, his cousin, and his uncle then entered the apartment. They smelled a distinct, foul odor. Enoc’s uncle searched for Damaris in the bedroom, then in the closet, where he found Damaris’s body wrapped in a comforter and duct tape. Enoc noted that, when they found the body, Damaris’s and Castello’s infant daughter was in the living room of the apartment in her walker. Enoc also testified regarding the effect Damaris’s death had on him and his family.
At the sentencing hearing, the State submitted a PSI report, and the trial court took judicial notice of it. Castello did not object to the report or its contents.
The PSI report included a statement detailing information regarding the murder, Castello’s prior offenses, and his social history, including but not limited to information regarding his health and drug and alcohol use. It stated that Castello "believes he is in need of alcohol and drug substance abuse treatment." Moreover, it included Castello’s Harris County Special Needs Response Form, in which Castello asserted that, on September 30, 2014, he was diagnosed with schizoaffective disorder
and prescribed psychotropic medications. The PSI report also contained numerous letters written by Damaris’s family and friends, as well as letters from Castello’s mother, grandmother, siblings, and his former employer. It included a letter from Castello himself in which he expressed remorse for the murder.
Notably, the PSI report included a Psychological Evaluation Report completed by clinical psychologists Jerome B. Brown and Sheila M. Bailey.1 The evaluation included Castello’s self-reported assertion that he "began to hear voices about a ‘day before’ his offense" and, on the day of the offense, he heard a voice telling him that he should kill Damaris. The evaluation also reported that Castello said that he consumed about eight or nine beers on the night of the offense. Castello denied receiving professional counseling services or psychoactive medication before his incarceration.
The report found, however, that "[t]he validity scales administered suggested an exaggeration of symptoms" and that there appeared "to be an effort to claim highly unusual attitudes and behaviors and to project severe psychopathology." Thus, the profiles obtained "should be interpreted with caution." Further, the evaluators found that "[e]stimates of intellectual ability place Mr. Castello in the average range." The "[m]ental status examination revealed Mr. Castello to be alert, well-oriented, and able to communicate his ideas without difficulty."
The report concluded that "[a]lthough there is a possibility that mental illness played a part in the homicide, currently there is only his self-report." It stated that Castello "mentioned no symptoms to the investigating police officers, has no psychiatric history, and did not describe the path of development over time usually seen in severe mental disorders." Accordingly, Dr. Brown and Dr. Bailey concluded that there was insufficient evidence to mount an insanity defense at that time.
At the close of argument, the trial judge sentenced Castello to 55-years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Four days after the entry of judgment, the trial court entered a Criminal Bill of Costs totaling $359, which included a $120 fee for summoning witnesses and mileage. Castello appealed.
In his first issue, Castello argues that the trial court erred in failing to require the PSI report to include a drug and alcohol evaluation and a psychological evaluation. Castello forfeited this argument.
Castello premises his argument on Article 42.12 of the Texas Code of Criminal Procedure, which set forth statutory guidance regarding the imposition of community supervision and addressed PSI reports.2 With regard to evaluations for alcohol or drug abuse, section 9(h) of article 42.12 provided that:
On a determination by the judge that alcohol or drug abuse may have contributed to the commission of the offense ... the judge shall direct a supervision officer ... or a person, program, or other agency approved by the Texas Commission on Alcohol and Drug Abuse, to conduct an evaluation to determine the appropriateness of, and a course of conduct necessary for, alcohol or drug rehabilitation for a defendant and to report that evaluation to the judge.
TEX. CODE CRIM. PROC . art. 42.12, § 9(h).3
Likewise, as to mental health evaluations, section 9(i) of article 42.12 provided that:
[a] presentence investigation conducted on any defendant convicted of a felony offense who appears to the judge through its own observation or on suggestion of a party to have a mental impairment
shall include a psychological evaluation which determines, at a minimum, the defendant’s IQ and adaptive behavior score. The results of the evaluation shall be included in the report to the judge....
Castello forfeited his first argument by failing to raise it below. It is undisputed that Castello neither objected to the PSI report nor requested the inclusion of a psychological or drug and alcohol abuse evaluation in the report.
On appeal, Castello argues that he could not have forfeited this argument. In so arguing, he urges us to rely on a 1991 San Antonio Court of Appeals case, Garrett v. State , 818 S.W.2d 227 (Tex. App.—San Antonio 1991, no pet.).
Binding precedent squarely rejects his contention. It is well-settled in both our Court and our sister Court that mental health and alcohol and drug evaluations in the PSI report may be forfeited. See, e.g. , Cain v. State , 525 S.W.3d 728, 730–31 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd) (); Morris v. State , 496 S.W.3d 833, 837–38 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (); Welch v. State , 335 S.W.3d 376, 382 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (similar); Nguyen v. State , 222 S.W.3d 537, 541 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd) (...
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