Jesus Humberto Castillo v. The State of Texas--Appeal from 341st Judicial District Court of Webb County

No. 04-97-00001-CR

Jesus Humberto CASTILLO,

Appellant

v.

The STATE of Texas,

Appellee

From the 341st Judicial District Court, Webb County, Texas

Trial Court No. K-96-196-D3

Honorable Elma Teresa Salinas Ender, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Karen Angelini, Justice

Delivered and Filed: October 30, 1998

AFFIRMED

Nature of the case

Jesus Humberto Castillo was found guilty of the offense of criminally negligent homicide as a result of the death of his infant daughter, Frances S. Castillo. Pursuant to an agreement by the parties, the court assessed punishment at two years confinement, suspended imposition of the sentence, and placed Castillo on community supervision for five years.

Castillo now brings three issues on appeal. In his first issue, Castillo alleges that the evidence was legally insufficient to support his conviction for criminally negligent homicide. In his second issue, Castillo contends that the court erred in admitting his written statement into evidence. In his third issue, Castillo asserts that the court erred in admitting evidence seized unlawfully from his home. We affirm.

Factual Background

The record reflects that on the morning of December 9, 1995, the infant victim was at home with her mother and her father, Jesus Castillo. The Castillo family resided in a small house behind Castillo's grandmother's house. The infant's mother left her in the temporary care of Castillo for a few minutes while she went to the grandmother's house to use the bathroom because their small house did not have bathroom facilities. Castillo had been gone most of the night before and had recently returned home. Castillo was trying to fall asleep, but the infant began to cry after her mother left the room. After spending a few moments attempting to quiet her down, Castillo placed the infant on the bed. The evidence at trial showed that Castillo then placed a pillow on top of the infant.

Minutes later, the infant ceased to breathe. Upon discovering that the infant had stopped breathing, the Castillo family called the paramedics. The infant was rushed to a nearby hospital for emergency medical care. While at the hospital, Castillo was informally questioned by a child protective worker, at least one doctor, and at least one investigating detective who had been called in response to reports that Castillo might have suffocated the infant. Even though Castillo was not then in custody, he was read his Miranda rights.

After several hours at the hospital, Castillo and his wife accompanied police officers to the police station for further questioning. While at the station, Castillo was again administered Miranda warnings before he orally confessed to placing a pillow over the infant's head to keep her from crying. Castillo then agreed to write down his recollection of the events on a confession form with the understanding that he was not in formal custody. The confession form also had Miranda warnings on its face which Castillo read and initialed after waiving his rights.

Several days later, the infant died without ever regaining consciousness. Castillo was indicted for the offense of murder. At trial, the court charged the jury on the offenses of murder, manslaughter, and criminally negligent homicide. The jury found Castillo guilty of the offense of criminally negligent homicide.

Legal Sufficiency

In his first issue, Castillo alleges that the evidence presented at trial was legally insufficient to support a conviction for criminally negligent homicide. In reviewing a claim of legal insufficiency, we review the evidence in the light most favorable to the verdict to 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, 318-19 (1979). By applying this standard to the case before us, we conclude that the evidence is sufficient to sustain a conviction of criminally negligent homicide.

A person commits the offense of criminally negligent homicide if "he causes the death of an individual by criminal negligence." TEX. PEN. CODE ANN. 19.05(a) (Vernon 1994). "Criminal negligence" is defined as follows:

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 the circumstances exist or the result will occur. 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.

TEX. PEN. CODE ANN. 6.03(d) (Vernon 1994).

Castillo argues that the evidence shows that he either committed the offense of murder or that the death resulted from other reasonable hypotheses such as Sudden Infant Death Syndrome ("SIDS"), negligent emergency medical treatment, or the failure to maintain hospitalized life-support systems at the time of cardiac arrest. However, Texas courts no longer consider the "reasonable hypothesis" theory when addressing cases which contain circumstantial evidence. Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991). Castillo argues that if he intentionally put a pillow on top of the infant, he would have intentionally caused the death of his daughter. However, viewing the evidence in the light most favorable to the verdict, the evidence also shows that Castillo intentionally put the pillow on the infant but did not intend to kill the infant.

Castillo testified that he put a pillow on top of the infant because she was crying and could have been cold. He also testified that he did not have the experience to know that she was going to die. The mother of the infant testified that when she returned, she saw a pillow on top of the infant's head. As a result of Castillo's conduct, the infant stopped breathing. The evidence demonstrates that Castillo was aware of the infant's pre-existing breathing difficulties. Thus, Castillo's conduct of putting the pillow on the infant amounted to his taking a substantial and unjustifiable risk that the infant would suffocate, a risk of which Castillo should have been aware. Based on the evidence, a reasonable jury could find the elements of criminally negligent homicide beyond a reasonable doubt. Thus, the evidence is legally sufficient. We overrule Castillo's first issue.

Miranda Warnings

In Castillo's second issue, he challenges the admission of his inculpatory, written statement into evidence at trial. Castillo maintains that the police held him in custody while he was still at the hospital and then escorted him to the police station where he gave an oral statement, followed by his written statement. Castillo filed a pre-trial motion to suppress the written statement which the trial court denied at a pre-trial hearing. We review the denial of a motion to suppress a confession under an abuse of discretion standard. Dunn v. State, 951 S.W.2d 478, 480 (Tex. Crim. App. 1997).

The focus of Castillo's present challenge centers on the adequacy of the Miranda warnings on the face of the confession form. The listed warnings initialed by Castillo on his statement are, in relevant part, as follows:

1. I have the right to remain silent and not make any statement, and any statement made by me, can be used against me;

2. That any statement that I make can be used as evidence against me in Court;

3. I have the right to have an attorney present to counsel me before or during the questioning at my trial;

4. If I do not have the means to hire an attorney, I have the right to be assigned one to counsel me before or during the questioning; and

5. I have the right of ending this interview at any time.

Castillo takes issue with the third warning, claiming that the phrase, "before or during the questioning at my trial" misled him because it informed him that he had the right to have a lawyer present only during questioning at trial. Article 38.22 requires that an accused be warned that "he has a right to have a lawyer present to advise him prior and during any questioning." Tex. Code Crim. Proc. Ann. art. 38.22, 2(a)(3) (Vernon 1979). Miranda warnings can be adequate through language which is "substantially compliant" with article 38.22, section 2 of the Texas Code of Criminal Procedure. See White v. State, 779 S.W.2d 809, 827 (Tex. Crim. App. 1989); Sosa v. State, 769 S.W.2d 909, 916 (Tex. Crim. App. 1989); Hardesty v. State, 667 S.W.2d 130, 135 (Tex. Crim. App. 1984). Castillo argues that the failure to convey to Castillo that he had the right to have an attorney present during questioning by the police made his statement inadmissible.

Castillo relies on State v. Subke to support his argument that the third warning given on the

statement was inadequate. State v. Subke, 918 S.W.2d 11 (Tex. App.--Dallas 1995, pet. ref'd). In Subke, a police officer told Subke that he had the right to remain silent and not make any statement at all and any statement made would be used against him at his trial, which is the statutory warning required under article 38.22, section 2(a)(1). Id. at 12. However, the police officer did not warn Subke that any statement made might be used as evidence against him in court as required by article 38.22, section 2(a)(2). Id. at 13. Thus, the court of appeals found that the police officer had not substantially complied with article 38.22, section 2(a)(2) and therefore the statement was inadmissible. Id. at 15.

Castillo argues that if telling a defendant that any statement can be used at trial is not sufficient to convey that any statement can be used against him as evidence, then warning a defendant that he has a right to have an attorney present before or during questioning at trial certainly does not convey that the defendant has a right to have an attorney present before or during questioning by the police. However, in Subke the police officer failed to read a statutory warning. See id. Regardless of the similarity of the warnings in section 2(a)(1) and 2(a)(2), article 38.22 requires that both warnings be given to an accused and the court of appeals found no substantial compliance because warning 2(a)(2) had been omitted altogether. See id. Thus, we do not find that the Subke case supports Castillo's argument. Therefore, we will look to the language of the third warning to determine if the wording is in substantial compliance with the statutory warning set out in section 2(a)(3) of article 38.22.

In this case, the third warning differs from the statutory warning in that it states that Castillo has a right to an attorney before or during the questioning at my trial. Castillo's argument seems to be that the phrase, at my trial, led him to believe that he could only have the advice of counsel during questioning at his trial and not at any pre-trial interrogations. However, we cannot ignore the plain language of the third warning which states that Castillo has a right to have counsel before questioning at trial, as well as during questioning at trial. This language encompasses any pre-trial interrogations in addition to questioning during the course of the trial.

Therefore, we find that the phrase "before or during the questioning at my trial" substantially complies with the intent of article 38.22, section 2(a)(3) without the danger of misleading the reader into thinking that counsel can only be present during questioning at trial. We find that the trial court did not abuse its discretion by admitting Castillo's written statement into evidence. We overrule Castillo's second issue.

Search and Seizure

In his third issue, Castillo argues that the trial court erred in admitting into evidence items seized from his residence. Castillo argues that because photographs of his residence and pillows from his residence were obtained by Officer Cantu without a search warrant or the existence of exigent circumstances, the evidence should not be admitted into evidence. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon Supp. 1998) (exclusionary rule). During trial, defense counsel urged for the first time a motion to suppress evidence seized pursuant to a warrantless search. The court conducted a hearing outside of the presence of the jury and Officer Cantu testified about the search and seizure. The trial court denied the motion to suppress.(1)

Defense counsel also objected when the evidence was admitted at trial.

The State argues that Officer Cantu received consent to search Castillo's residence from Castillo's grandmother, the owner of the premises. United States v. Matlock, 415 U.S. 164, 165-66 (1974) (finding that voluntary consent to a warrantless search does not violate Constitution). Because Castillo does not allege that his grandmother's consent was involuntary, the issue becomes whether the grandmother had authority to consent to the search of Castillo's residence. Third persons may validly consent to a search if they have "common authority over or other sufficient relationship to the premises or effects sought to be inspected." Id. at 171. The Supreme Court has defined "common authority" as the "mutual use of the property by persons generally having joint access or control for most purposes" and must be more than a "mere property interest." Id. n.7. Further, the Court of Criminal Appeals has held that in order for third parties to consent to a search they must have "equal control over and equal use of the premises being searched." Becknell v. State, 720 S.W.2d 526, 528 (Tex. Crim. App. 1986).

In this case, the evidence showed that Castillo and his family resided in a small structure behind his grandmother's house. The two structures were connected by a sidewalk and Castillo and his family used bathroom facilities located in his grandmother's house. The evidence demonstrated that Castillo's grandmother owned both structures. The evidence showed that Castillo had lived with his grandmother before getting married and did not currently pay any rent for the residence. According to testimony, Officer Cantu knocked on the front door of the grandmother's house and she represented herself to him as the owner of the property. She not only consented to Officer Cantu's presence, but also led him into Castillo's residence. As the owner of both structures and by virtue of leading Officer Cantu into Castillo's residence, the evidence showed that the grandmother had joint access with Castillo to his residence. However, the record does not supply facts concerning the grandmother's equal control or equal use of the premises which is required for a third party to have actual authority to consent to a search. See Becknell, 720 S.W.2d at 528.

The State urges that if the facts do not support Castillo's grandmother having actual authority to consent to the search, the facts demonstrate "apparent authority." The Supreme Court has held that a warrantless entry is not invalid when such entry is based on the consent of a third party whom the officers reasonably believed possessed common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). We agree that based on these facts Officer Cantu could have reasonably believed that the grandmother had authority to consent to a search. Officer Cantu knocked on the door, the grandmother identified herself as the owner of the house, and then led him into Castillo's residence.

However, the Court of Criminal Appeals has not formally adopted the "apparent authority" doctrine, but instead noted that if "ambiguous circumstances" arise which cast doubt on the effectiveness of the consent, the officers must stop and make reasonable inquiries as to the effectiveness of the consent. See McNairy v. State, 835 S.W.2d 101, 105 (Tex. Crim. App. 1991). Further, the Court found that the court of appeals erred in relying on the apparent authority doctrine to justify the search, but justified the search on other grounds. Id. In Brimage v. State, the Court of Criminal Appeals re-emphasized that the court had not formally adopted the "apparent authority" doctrine and discussed the holding in McNairy v. State. Brimage v. State, 918 S.W.2d 466, 481 (Tex. Crim. App. 1996). However, the Court does acknowledge the doctrine of "apparent authority" in the Brimage case, but finds that "ambiguous circumstances" existed and therefore the officers could not have reasonably relied on the consent. Id. at 481-82.(2)

However, we need not rely on "apparent authority" because we find that the admission of the seized evidence was harmless. Officer Cantu seized pillows from the bed because he had been told that Castillo had placed a pillow on the infant. Additionally, Officer Cantu took photographs of the inside of Castillo's residence which were also admitted into evidence. Because Castillo never disputed that a pillow was involved, the admission of the pillows was harmless. The testimony centered around the placement of the pillow on the infant, Castillo's intent, and the cause of death. The admission of the pillows proved that Castillo had pillows on his bed which was cumulative of his testimony that he had placed a pillow on the infant. Further, the State did not identify which pillow or pillows were used in the offense. Although the State had the infant's mother place a seized pillow on a doll to show how the pillow was placed on the infant, the demonstration was cumulative of the mother's testimony.

Because the admission of the pillows into evidence was cumulative of Castillo's uncontested testimony that he placed a pillow on the infant, we find that Castillo suffered no harm from their admission. The admission of the photographs of Castillo's residence also did not harm Castillo because they merely reflected that the bed contained pillows. Regardless of the grandmother's actual or apparent authority to consent to a search of Castillo's residence, we find beyond a reasonable doubt that the admission of the seized evidence did not contribute to Castillo's conviction. We overrule Castillo's third issue.

Accordingly, we affirm the judgment.

Karen Angelini, Justice

DO NOT PUBLISH

1. We note that the trial judge denied the motion on the basis that "the defendant has waived a motion to

suppress the evidence by failing to comply with the Code of Criminal Procedure article 28.01" and, in the alternative, on the basis that "consent was given by a third party with common control" and that "exigent circumstances existed to justify the seizure of evidence without a warrant." The trial court has the discretion to set a criminal case for a pre-trial hearing in order to determine certain matters before trial in order to avoid delay, including a motion to suppress evidence. TEX. CODE CRIM. PROC. ANN. art. 28.01 1(6) (Vernon 1989). Following certain notice requirements, the trial judge can bar such preliminary matters from being raised or filed after the conclusion of the pre-trial proceedings. Id. art. 28.01 2. Even so, it is within the trial court's discretion to allow such preliminary matters to be raised after the pre-trial hearing "for good cause shown." Id. In this case, a pre-trial hearing was held to determine several preliminary matters including Castillo's motion to suppress his written statement and thus, the court had discretion in deciding whether to hear the motion to suppress.

2. We note that the Court's opinion on rehearing justifies the search under the Emergency Doctrine and states that "we need not address whether the police reasonably relied on apparent authority when they conducted said search." Brimage v. State, 918 S.W.2d 466, 503 n.7 (Tex. Crim. App. 1996).