Castro v. State, 04-94-00399-CR

• Decision Date: 29 November 1995
• Docket Number: No. 04-94-00399-CR,04-94-00399-CR
• Citation: 914 S.W.2d 159
• Parties: Hubert Edward CASTRO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 159

914 S.W.2d 159

Hubert Edward CASTRO, Appellant, v. The STATE of Texas, Appellee.

No. 04-94-00399-CR.

Court of Appeals of Texas San Antonio.

Nov. 29, 1995.

John M. Economidy, Law Offices of John M. Economidy, San Antonio, for Appellant.

Steven C. Hilbig, Criminal District Attorney and Edward F. Shaughnessy, III, Assistant Criminal District Attorney, San Antonio, for Appellee.

Before CHAPA, C.J., and RICKHOFF and STONE, JJ.

OPINION

STONE, Justice.

This appeal arises from the conviction of Hubert Edward Castro for capital murder. A jury sentenced Castro to serve life in prison. In his appeal, Castro raises five points of error challenging (1) the legality of his statement taken by police; (2) the trial court's refusal to admit into evidence appellant's testimony from his first criminal trial, which ended in a mistrial; (3) the trial court's ruling that appellant lacked standing to contest a search of transient military quarters where incriminating evidence was found; (4) the good faith of the officers who conducted the search; and (5) the admissibility of an order showing the authority to permit the search of the military quarters. For the reasons stated below, we reject appellant's contentions and affirm his conviction.

I. SUMMARY OF FACTS

Castro was a soldier at Fort Sam Houston (U.S. Army facility) when he deserted the Army and joined two friends in an escapade that involved the murder of a car salesman. During his absence of leave from the Army, Castro and his two friends went to a local car dealership and arranged for a test drive of a Nissan Pathfinder. During the test drive, Castro killed the salesman with a single shot from a 9mm Glock handgun at a Park & Ride in Live Oak, Texas. The three absconded with the Pathfinder to Castro's home in Tennessee. Three weeks later, Castro and his accomplices were arrested at Randolph Air Force Base when they returned to Texas.

Castro was first prosecuted in United States District Court for transporting stolen property through interstate commerce. Then the State indicted Castro for capital murder. His trial for murder, however, resulted in a mistrial when the jury deadlocked. After a change of venue, Castro was tried again and convicted of capital murder. He was sentenced to life in prison. In his appeal, Castro raises five points of error.

II. LEGALITY OF APPELLANT'S STATEMENT

Castro first argues that his statements to the police were illegally obtained because he made his statement without legal counsel and because he did not initiate contact with the police on the day he gave his statement.

A. Statements of the Criminally-Accused

Once an accused indicates that he desires the assistance of legal counsel, all interrogation of the accused must cease and any statement thereafter must be suppressed unless he makes a voluntary and knowingwaiver of his right to have counsel present. Edwards v. Arizona, 451 U.S. 477, 480, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981); Sorenson v. State, 709 S.W.2d 321, 322 (Tex.App.--Texarkana 1986, no pet.). This rule is not violated, however, when the accused himself initiates further communication with the police, and his statements are admissible in evidence if the totality of the circumstances shows that he made an intelligent and voluntary waiver of his right to counsel. Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405, 412 (1983); Edwards, 451 U.S. at 482, 101 S.Ct. at 1883; Sorenson, 709 S.W.2d at 322.

B. Castro's Statement

Castro was arrested as he and his friends entered the transient quarters at Randolph Air Force Base. The transient quarters are part of the military installation and are used by the military to house military people who are in a "transient" status. The transient facility is made up of several buildings on the base and is operated similar to a civilian hotel.

The arrest was made by members of the Air Force's Special Office of Investigation. The Air Force's investigators were accompanied by members of the Live Oak Police Department who were investigating the murder of the Nissan car salesman. Upon his arrest, Castro was advised of his Miranda rights and then moved to the Air Force Office of Special Investigations on Randolph where the investigators completed paperwork relative to the arrest.

Soon after arriving at that office, Castro told one of the investigators that he wanted a lawyer, so the investigators stopped talking with Castro. Later that evening, Castro told Detective Hooper, one of the Live Oak police officers, that he wanted to make a statement, but Hooper advised him that he could not take a statement at that time because Castro had expressed his desire to speak with a lawyer. Detective Hooper also told Castro that he would contact the Bexar County District Attorney's office to let the office know that he wished to make a statement. That evening Castro was transferred to the custody of the Live Oak Police who presented him to the Magistrate who informed Castro of his Miranda rights.

The next morning, Detective Hooper was told by a representative of the Bexar County District Attorney's office that he could take Castro's statement if he still wanted to make one. Finding that Castro still desired to make a statement, Hooper went to the lock-up facility and after again warning him of his Miranda rights took Castro's statement. At trial, Castro filed a motion to suppress his written statement, State's Exhibit 94. The trial judge denied the motion and the State admitted the statement.

At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses and the weight of their testimony. Banda v. State, 890 S.W.2d 42, 51 (Tex.Crim.App.1994). On review, an appellate court does not disturb the findings of the trial court, but considers whether the trial court improperly applied the law to the facts. Id. at 52.

The evidence here establishes that Castro waived his right to have counsel present when he made his statement. It was Castro, not the police, who initiated the "further communications" after he invoked his right to counsel. The record shows that Castro was advised of his Miranda rights four times prior to giving his statement. This constituted an intelligent and knowing relinquishment of his right to counsel. Labarge v. State, 681 S.W.2d 261, 263 (Tex.App.--San Antonio 1984, no pet.) Since Castro knowingly relinquished his right to counsel prior to making his statement, the trial judge did not err in allowing the State to submit Castro's statement. We overrule Castro's first point of error.

III. EXCLUSION OF EVIDENCE

At his first trial, Castro testified and was cross-examined by the State. A mistrial was declared after the jury dead-locked. At the conclusion of his case-in-chief at his second trial, Castro's defense attorney advised the trial court that Castro invoked his privilege against self-incrimination and attempted to introduce Castro's testimony from his first trial. The State objected on the grounds that the prior testimony was inadmissible hearsay. The trial judge sustained the objection and the evidence was excluded. In his second point of error, Castro contends that his prior testimony was improperly excluded.

Castro contends that his former testimony should have been admitted under the "former testimony" exception to the rule against hearsay. TEX.R.CRIM.EVID. 804. Under the former-testimony exception, a declarant's testimony from a prior proceeding can be admitted if the declarant was subject to cross-examination in the prior proceeding, and his testimony is now unavailable. TEX.R.CRIM.EVID. 804(b)(1). Castro argues that he was unavailable by virtue of exercising his Fifth Amendment right against self-incrimination.

A. Unavailability

The Texas Rules of Criminal Evidence define five situations in which a declarant is considered "unavailable" as a witness. TEX.R.CRIM.EVID. 804(a). If a witness is unavailable as a witness, his testimony given as a witness at a prior proceeding may be admitted into evidence if the party against which it is offered had an opportunity to cross-examine the witness at the former proceeding. TEX.R.CRIM.EVID. 804(b)(1). The definition of "unavailability" includes the situation in which the declarant is "exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement." TEX.R.CRIM.EVID. 804(a)(1). Protection under the Fifth Amendment against self-incrimination is such a privilege. However, the rule also holds that "a declarant is not unavailable as a witness if his exemption ... is due to the procurement ... of the proponent of his statement for the purpose of preventing the witness from attending or testifying."

Here, the defendant has created his own unavailability by invoking his Fifth Amendment protection against self-incrimination. The question then before the Court is whether a defendant who has procured his own unavailability by invoking his protection against self-incrimination is "unavailable" as a witness for the purposes of Rule 804(b)(1). Although the Court has been unable to find a Texas case addressing this issue, we are persuaded by the Fifth Circuit's decision in United States v. Kimball, 15 F.3d 54 (5th Cir.1994), cert. denied, 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994). In Kimball, the defendant attempted to introduce his testimony from his first trial at his second trial while invoking his Fifth Amendment right against self-incrimination. The defendant argued that he was rendered unavailable when he invoked his Fifth Amendment right, so the trial judge erred in excluding his former testimony. The Fifth Circuit rejected that argument because "[t]he sponsor of a declarant's former testimony may not create the condition of unavailability and then benefit therefrom." Kimball, 15 F.3d at 55-56. Otherwise, the criminally-accused is permitted to set out all the facts which fall in his favor without...