Castillo v. State

• Decision Date: 25 August 2010
• Docket Number: No. 01–08–00188–CR.,01–08–00188–CR.
• Citation: 404 S.W.3d 557
• Parties: Carlos CASTILLO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

404 S.W.3d 557

Carlos CASTILLO, Appellant,

v.The STATE of Texas, Appellee.

No. 01–08–00188–CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 7, 2010.

Dissenting Opinion April 7, 2010.

Discretionary Review Refused

Aug. 25, 2010.

Don R. Cantrell, for Appellant.

Lana Shadwick, Charles A. Rosenthal, Jr., for the State of Texas.

Panel consists of Chief Justice RADACK and Justices SHARP and TAFT. ^*

MEMORANDUM OPINION

TIM TAFT, Justice.

A jury convicted appellant, Carlos Castillo, of escaping from police custody. SeeTex. Penal Code Ann. § 38.06(a)(1) (Vernon Supp.2009). The trial court assessed punishment at 25 years' confinement. In three issues, appellant challenges the legal sufficiency of the evidence, specifically arguing that there was no evidence that he was arrested because he was neither handcuffed nor told that he was under arrest and because there was no evidence that appellant possessed a usable quantity of marihuana, i.e., four ounces or more. We modify the judgment of the trial court and we affirm as modified.

Background

In February 2007, an undercover police officer with the narcotics division of the Pasadena Police Department received an anonymous tip that a shipment of marihuana would be delivered to a certain address that same day. The officer drove past the address the informant had given him, recorded the license plate number of a vehicle parked in the driveway, and parked down the street to set up surveillance of the house. The officer determined that the vehicle parked in the driveway was registered to a man named “Jose,” which the officer thought was consistent with the informants tip that the marihuana would be delivered to a man named “Joe.”

Around 6:00 p.m., the undercover officer spotted appellant driving a maroon truck very slowly through the neighborhood, looking in every direction, even looking directly at the officer. Appellant left the truck running in the center of the street and went inside the house that the officer was watching. The officer saw appellant greet a Hispanic man at the door. While appellant was inside the house, the officer learned that the maroon truck was licensed to two people who lived in Edinburg, Texas, near the Mexican border. After about 20 minutes, appellant and the other man came out of the house, stood in the yard talking, and shook hands. Appellant went back to his truck and drove away; the other man returned to the house.

The undercover officer, who was working with a uniformed officer in a marked car, broadcast information about appellants truck and where it was headed. The undercover officer then drove around the corner, where he saw appellant park the maroon truck beside a house. After several minutes, a four-door, black pickup truck pulled into the driveway. Appellant left the maroon truck running and got out to greet the driver of the black truck. The two men shook hands and looked in the back of the black truck. The other man lifted up a tarp or covering, showing appellant something. The undercover officer testified at trial that appellant “appeared to be very jubilant. He was happy.” The men replaced the covering, shook hands, and patted each other on the shoulder.

Appellant and another man each took a large, bulky object out of the truck and into the house, locking the black truck and arming the alarm system as they left. To the undercover officer, the object looked like a woven, plastic gunnysack with bright orange writing all over it. The officer could see that the object had rope handles, but he ruled out the possibility that it could be a suitcase. The men came out about 20 minutes later and got into the maroon truck where appellant sat in a passenger seat. The undercover officer contacted uniformed officer R. Carro, and followed the truck.

The undercover officer watched the maroon truck turn without signaling, and he shared this information with Officer Carro who then pulled behind the maroon truck. Officer Carro saw the maroon truck make another turn without using a turn signal, and he initiated a traffic stop with the undercover officers agreement.

Officer Carro observed that the driver was very nervous. When the driver rolled down the window, Officer Carro smelled the strong odor of burned marihuana emitting from the vehicle. Officer Carro did a pat-down search and felt something that he believed was a weapon, which turned out to be drug paraphernalia. Officer Carro arrested the driver for possession of drug paraphernalia.

When Officer Carro stopped the maroon truck, the undercover officer also pulled over. The undercover officer approached the truck from the passenger side, and he found appellant sitting in the rear passenger-side seat. The officer identified himself as a police officer and asked appellant for identification. The officer asked appellant background questions in English, and appellant responded in English. Appellant told the undercover officer that he had been visiting friends in Pasadena and had just come from a restaurant. Appellant denied ever having been on the streets in question. The undercover officer told appellant that he was investigating a marihuana case and that he had been watching appellant and knew that appellant did not just come from a restaurant. Although the undercover officer testified at trial that his unmarked car was not equipped with a video camera, he testified that he may have told appellant that he captured the entire transaction on videotape. The officer explained at trial that this sort of ruse is a commonly used investigatory technique.

The undercover officer asked appellant if he would return to the house where the black truck was parked to verify that he had never been there before, and appellant agreed to do so, riding over to the house in the back of a marked police car. The undercover officer testified at trial that there is a steel barrier between the backseat and the front seat and that the back doors open only from the outside.

The house where the black truck was parked was about a minute away from where Officer Carro stopped the maroon truck. The undercover officer knocked on the front door, and the woman who opened the door gave consent to search the house and the truck, which she said she owned. As the undercover officer approached the black truck, he smelled the odor of green, unburnt marihuana. He lifted the blanket that he saw earlier and found large block objects in woven plastic gunnysacks, with orange, brown, and black printing on them. They were similar to the object that he saw appellant carry into the house earlier that evening. The officer opened one of the packages with a pocketknife, and he found a felony amount of marihuana.

The undercover officer then saw appellants reaction to his discovery:

As I walked away from the vehicle and was shutting the door and was going to go back inside the house, I actually was going to talk to Officer Carro and could see [appellant] through the glass of the vehicle.... He was paying very close attention to our activities. He was glaring out the window and he appeared like the wind had come out of your sails. I dont know how to describe it other than just slumped.... [H]e just was looking out the window and was just kind of slumped over, as before he was, you know sitting upright.

The undercover officer went back inside the house briefly, and when he came outside, appellant was not in the police car. Officer Carro testified that he saw the felony amount of marihuana in the black truck, and then he heard “glass breaking, a window being kicked out.” When Officer Carro turned around, he saw appellant climbing out of the police car through the broken window. Officer Carro advised dispatch that appellant was running away, and he chased appellant, yelling stop at least seven times. At one point, Officer Carro had to stop chasing appellant to avoid being hit by oncoming traffic. Additional police officers, including a K–9 unit, responded to the scene and set up a perimeter to catch appellant. Appellant continued running away, crossing three lanes of highway traffic, jumping over a three-foot wall, and jumping 10 feet from the highway to the frontage road before being re-arrested by another police officer.

Sufficiency of the Evidence

In his first issue, appellant contends that the evidence was legally insufficient to prove his escape conviction because he was never handcuffed or told that he was under arrest. Appellant argues that because he voluntarily got into the police car, he was not in custody, and he was merely being temporarily detained for investigation.

A. Standard of Review

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App.2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App.1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this is the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). In conducting our review, we resolve any inconsistencies in the evidence in favor of the verdict. Matson, 819 S.W.2d at 843.

B. The Law of Arrest

“A person commits an offense if he escapes from custody when he is ... under arrest for ... an offense.” Tex. Penal Code Ann. § 38.06(a) (Vernon 2003). A completed arrest distinguishes the offense of escape from the offenses of evading or resisting arrest. Sample v. State, 292 S.W.3d 135, 137, n. 1 (Tex.App.Houston [14th Dist.] 2008, pet. refd.) (citing Medford v. State, 13 S.W.3d 769, 773 (Tex.Crim.App.2000)). An arrest...