John Stephen Castaneda v. State of Texas--Appeal from 416th District of Collin County

Opinion filed February 8, 2007

In The

Eleventh Court of Appeals

____________

   No. 11-05-00255-CR

__________

JOHN STEPHEN CASTANEDA, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 416th District Court

Collin County, Texas

Trial Court Cause No. 416-80013-04

O P I N I O N

John Stephen Castaneda appeals his conviction by a jury of the offense of murder. The trial court assessed his punishment at life in the Texas Department of Corrections, Institutional Division. Castaneda contends in three points on appeal that the evidence is legally and factually insufficient to support his conviction and that the trial court erred in denying his request that an instruction regarding criminally negligent homicide be included in the court=s charge to the jury. We affirm.

Castaneda urges in points two and three that the evidence is legally and factually insufficient to support his conviction. In order to determine if the evidence is legally sufficient, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006), (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

Investigators found the body of the deceased, Patricia Ann Himelright, early on the morning of November 23, 2003, after Castaneda called 911 to report that he had just come home and discovered her body. Castaneda told the operator that Aher brains were blown out.@ The operator made reference in her dispatch that a shooting had been reported.

Castaneda initially denied any involvement in the victim=s death. In his statement to Deputy Robert Yeager of the Collin County Sheriff=s Office, Castaneda, who acknowledged that he lived with the victim, said that he had consumed a six-pack of beer prior to leaving the house at 5:00 p.m. to visit a friend. He said that he found the victim lying on the floor inside the back door when he returned about 2:00 a.m. Later, during an interview with the Collin County Sheriff=s Department, Castaneda repeatedly denied any involvement in shooting the victim, saying that she was alive and eating chicken when he left, that there was no physical fight between them, and that he had not known about or seen any pistol. After being confronted with the fact that his friend denied his alibi, Castaneda acknowledged that he had not visited the friend but that he had gone to get the victim some crank. He told the officer that the victim wanted to try some for the first time. Castaneda eventually acknowledged his involvement in the shooting, stating that, after the victim had threatened to kill him, he was defending himself by grabbing the victim=s hands that were holding the gun to get it away from her when the gun went off. He said that after the shooting he had gone riding around and had thrown the gun in the lake.

Although Castaneda referred to a shooting in his call to the 911 operator and although the operator referred to a shooting in her dispatch, initial investigators, including a field agent from the Collin County Medical Examiner=s Office, did not notice that the victim had been shot. The entrance wound of the bullet was difficult to see. Dr. William Rohr, the medical examiner for Collin County, discovered that the victim=s death might not be a natural death when he found gunshot residue on her left hand. Dr. Patrick Vesant-Matthews, formerly the number two medical examiner for Dallas County, expressed his opinion that the gun was approximately one-half inch from the victim=s skin when it was fired.

The victim=s larynx had been previously removed because of throat cancer. When she was found, she was lying on the floor with blood pooled beneath her head. Her voice amplifier, which she used because of the throat cancer, was in her left hand. She had two blunt force trauma wounds on the top of her head. The medical examiner found that the victim was intoxicated at the time of her death and that she had taken Zoloft, an antidepressant.

Elizabeth Hortman testified that on the night in question Castaneda and the victim were arguing over a lost checkbook. She indicated that the victim, who was drinking, took a gun out of a filing cabinet and placed it on the kitchen counter. A former spouse of the victim testified that the victim was familiar with firearms and that she had shot at him. He insisted that she had threatened him with a gun approximately five times during their thirty-year marriage. He related that the victim claimed to be ambidextrous but was not. He said that the victim always both shot and used her voice amplifier with her left hand. The State presented evidence showing several instances of violence that Castaneda had committed against a former fiancée, his ex-wife, and the victim.

Considering the evidence in accordance with the standard of review, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Castaneda murdered the victim, that the evidence is not so weak that the jury=s verdict is clearly wrong and manifestly unjust, and that the jury=s verdict is not against the great weight and preponderance of the evidence. We therefore conclude that the evidence is legally and factually sufficient to support the conviction. Castaneda contends that the evidence is legally insufficient because a rational juror could not have concluded from the evidence that he intentionally and knowingly killed the victim because of his statement to police that it happened during a struggle over the gun that she had displayed, gunpowder residue on her left hand, her intoxication, and her history of threatening with guns and shooting at her former spouse.

He acknowledges that there were two contusions on the victim=s head and that there was evidence of his violent nature but dismisses the evidence as inflammatory. In his discussion of this point, he fails to mention the evidence that he fled the scene, lied about his involvement, and disposed of the weapon used to shoot the victim. Flight is evidence of a circumstance from which an inference of guilt may be drawn. Colella v. State, 915 S.W.2d 834, 839 n.7 (Tex. Crim. App. 1995). We are of the opinion that Castaneda=s lying to law enforcement officers regarding his presence at the time of the shooting, as well as his disposal of the weapon, would also support an inference of guilt. Also, as previously noted, there was evidence that the victim, who was left- handed, was holding her voice amplifier in her left hand at the time of the shooting but that she always shot a gun with her left hand.

Relying on Zuniga, 144 S.W.3d at 484-85, Castaneda contends that, while there might be evidence to support either his theory or that of the State, the evidence supporting his theory is strong enough that the beyond-a-reasonable-doubt standard could not have been met. If that was the correct standard, we would hold that the evidence is factually sufficient because we disagree that his evidence, when considered with the other evidence in the case, is so strong that the beyond-a-reasonable-doubt standard could not have been met. We note, however, that the Texas Court of Criminal Appeals recently overruled Zuniga in part, eliminating the Abeyond-a-reasonable-doubt standard@ as set forth in that case.[1] See Watson, 204 S.W.3d at 415. We overrule points two and three.

Castaneda urges in point one that the trial court erred by refusing to submit his request that an instruction relating to the offense of criminally negligent homicide be submitted to the jury. A person commits an offense if he causes the death of another by criminal negligence. Tex. Pen. Code Ann. ' 19.05 (Vernon 2003). A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that exists or will occur. Tex. Pen. Code Ann. ' 6.03(d) (Vernon 2003). The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint. Id.

A defendant is entitled to a charge on a lesser included offense if the lesser included offense is included in the proof necessary to establish the offense charged and if there is some evidence in the record that, if the defendant is guilty, he or she is guilty only of the lesser offense. Thomas v. State, 699 S.W.2d 845, 847 (Tex. Crim. App. 1985). Criminally negligent homicide is a lesser included offense of murder. Id. The charge of criminally negligent homicide is required in a particular case if the record contains evidence showing that the defendant was unaware of the risk or that he or she failed to perceive the risk created by his or her conduct. Id. at 850-51. We therefore consider whether there is any evidence from which a rational jury could conclude that, if Castaneda is guilty, he is guilty only of criminally negligent homicide. There is no evidence that Castaneda lacked awareness of the risk that he or the victim could be killed by the gun used in the commission of the offense. To the contrary, in his later statements to the police, Castaneda asserted that he was struggling to defend himself after the victim had threatened him with the gun. Inasmuch as there is no evidence showing that Castaneda might only be guilty of criminally negligent homicide, the trial court did not err by failing to submit the instruction requested.

Castaneda relies on our opinion in the case of Levan v. State, 93 S.W.3d 581 (Tex. App.C Eastland 2002, pet. ref=d). We find that case to be distinguishable. In Levan, the court found that the trial court erred by refusing a charge on criminally negligent homicide, holding that the defendant=s testimony that the gun discharged accidentally coupled with evidence of the defendant=s belief that the gun was unloaded raised an inference that the defendant did not perceive a risk of injury or death. Id. at 585. In the case at bar, Castaneda refers us to no evidence raising an inference that he did not perceive the risk of injury or death. We overrule point one.

The judgment is affirmed.

PER CURIAM

February 8, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: McCall, J.,

Strange, J., and Hill, J.[2]

[1]We note that Castaneda did not have the benefit of the Watson case when he was preparing his brief.

[2]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.