Michael T. Castaldo v. The State of Texas--Appeal from County Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-99-147-CR

MICHAEL T. CASTALDO,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court

Navarro County, Texas

Trial Court # 45797

O P I N I O N

Michael Castaldo was convicted of possession of marihuana and sentenced to 180 days in jail, sentence suspended. We reversed his conviction because we held that (a) the extraneous acts of third parties, not just the defendant, were excluded by Rule of Evidence 404(b), and (b) same-transaction-contextual evidence requires a limiting instruction in the charge. Castaldo v. State, 32 S.W.3d 413 (Tex. App. Waco 2000). The Court of Criminal Appeals held that, (1) while Rule 404(b) does apply to the acts of third parties, here the trial court did not err in admitting evidence of the acts to show knowledge, an exception under Rule 404(b), and (2) same-transaction-contextual-evidence does not require a limiting instruction. Castaldo v. State, 78 S.W.3d 345 (Tex. Crim. App. 2002). The Court reversed our judgment and remanded the case for consideration of Castaldo s three remaining issues. Id.

The facts of the case are fully recited in our earlier opinion. Castaldo s three remaining issues are:

1. The trial judge erred by allowing the State to adduce testimony that Castaldo did not request fingerprint analyses on the two items of contraband introduced into evidence at trial, which testimony had the effect of shifting the burden of proof to Castaldo to prove his innocence.

2. The trial court erred in allowing previously-undisclosed results of a laboratory analysis of the contents of the two items containing contraband introduced into evidence at trial, because Castaldo requested discovery of this evidence before trial, which was granted by the court.

3. During the punishment phase, the State improperly suggested that Castaldo had a criminal history.

Finding error but no harm, we will affirm the judgment.

Fingerprint Analysis: Burden of Proof

The State s exhibits one and two were a box and a tupperware container, both of which contained contraband. Defense counsel asked State s witness Lieutenant Cox if fingerprint analyses had been conducted on the items, and Cox said no. Then the prosecutor asked Cox: Well, Lieutenant Cox, did the defendant request a fingerprint analysis of those items? Defense counsel objected as to relevancy, which was overruled. Cox responded: No, sir, they did not.

We review the admission of evidence for whether there is an abuse of discretion, i.e., whether the trial judge's decision lies within the zone of reasonable disagreement. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh g)). Error may not be found unless a substantial right of the party is affected. Tex. R. Evid. 103(a). The trial court must first determine if the evidence is relevant under Rule 401. Id.; Tex. R. Evid. 401. If so, the evidence is admissible unless forbidden by a constitutional provision, a statute, or a rule. Rankin, 974 S.W.2d at 718; Tex. R. Evid. 402. If the evidence was admissible for any purpose, we will sustain the ruling even if that purpose was not asserted at trial and even if the court gave the wrong reason for admitting the evidence. McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App. 1997) (not asserted); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990) (wrong reason).

Due process requires that the prosecution prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Mullaney v. Wilbur, 412 U.S. 684, 685, 95 S. Ct. 1881, 1883, 44 L. Ed. 2d 508 (1975) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072, 25 L. Ed. 2d 368 (1970)). Sometimes the burden of persuasion or of production may be shifted to the defendant, e.g., when a statutory defense is involved. E.g., Alford v. State, 806 S.W.2d 581 (Tex. App. Dallas 1991), aff d on other grounds, 866 S.W.2d 619 (1993). But this is not such a case. Here, the issue was whether Castaldo ever possessed the containers, thereby leaving his fingerprints on them. This issue pertains to an element of the offense, i.e., possession, about which the State had the burden of proof. Although Castaldo would later testify in the trial, he had not at the point this evidence was admitted. For the prosecutor to inquire at that point about whether Castaldo had attempted, through fingerprint analysis, to disprove that he ever possessed the containers may have implied to some jurors that it was Castaldo s burden to prove his innocence. Therefore, the question was improper, and the trial court erred in overruling the objection.

But there must also be harm from Cox s testimony. We must reverse a judgment when an error affects a constitutional right unless we determine beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a); Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967) (stating the standard from which Rule 44.2(a) derives).

Castaldo was a passenger in an automobile owned and operated by Martin Melson. A Sheriff s Deputy stopped the vehicle for suspicion of drunken driving. Both Melson and Castaldo were removed from the vehicle. Officers found a small brown box on the passenger s side of the floorboard and a tupperware container in the center console, both with marihuana inside. An officer testified that he smelled burnt marihuana inside the vehicle. In rebuttal, Castaldo and Melson testified that the marihuana was not Castaldo s who, they said, did not even know there was marihuana in the car. Castaldo added that, as part of his job, he was subject to random drug testing and so did not smoke marihuana.

When Castaldo chose to testify and to deny knowledge of the marihuana, he placed his credibility before the jury. Thus any harm from the inadmissible testimony was overshadowed by the fact that the jury did not believe him, which makes whether he requested a fingerprint analysis insignificant. Therefore, we can say beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a).

We overrule the issue.

Lab Reports

The State introduced into evidence two reports of laboratory analyses which stated that the substances found in the box and tupperware container were marihuana; Castaldo had not previously seen the reports. Castaldo complains that, before trial, he filed a motion for discovery of documentary evidence and the court granted his request. Therefore, he says the court should have sustained his objection to the admission of the reports, and because it did not, he was the victim of unfair surprise. The State responds that the record does not show the disposition of the motion.

Regardless of whether there was an order granting the motion, or whether Castaldo was unfairly surprised by the reports, Castaldo cannot show harm due to the admission of the reports. There was other evidence which established that the substances in the two containers were marihuana. The chain of custody from initial retrieval from the vehicle to delivery to the chemist was established, and the chemist who performed the analyses testified that the substances were marihuana. [I]t is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection . . . . Hernandez v. State, 914 S.W.2d 226, 233 (Tex. App. Waco 1996, no pet.) (citing Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984)).

We overrule the issue.

State s Suggestion of Criminal History

During the punishment phase, the State requested permission, over Castaldo s motion in limine, to introduce evidence that Castaldo had recently been placed on deferred adjudication for public intoxication, which request was denied. But the prosecutor then asked Castaldo: Mr. Castaldo, this is not your first brush with the law, is it though? Defense counsel objected, which was sustained. Castaldo did not answer the question. Castaldo alleges prosecutorial misconduct.

Two statutes in the Code of Criminal Procedure are pertinent. Article 42.12, (5)(c) states that [f]or any defendant who receives a dismissal and discharge under this section: (1) upon conviction of a subsequent offense, the fact that the defendant had previously received community supervision with a deferred adjudication of guilt shall be admissible before the court or jury to be considered on the issue of penalty. Tex. Code Crim. Proc. Ann. art 42.12, (5)(c) (Vernon Supp. 2002). Article 37.07, (3)(a)(1) states, in part, that evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including . . . any other evidence of an extraneous crime or bad act . . . regardless of whether he has previously been charged with or finally convicted of the crime or act. Id. 37.07, (3)(a)(1) (Vernon Supp. 2002). Article 42.12, (5)(c) appears to allow evidence of a deferred adjudication only when the defendant has receive[d] a dismissal and discharge, while article 37.07, (3)(a)(1) appears to include this evidence under all circumstances.

The Court of Criminal Appeals resolved this apparent conflict in Davis v. State, 968 S.W.2d 368 (Tex. Crim. App. 1998). The Court held that there is no inconsistency between the statutes, and even if there were, article 37.07, (3)(a)(1) was enacted later in time and therefore controls. Id. at 372. Thus, evidence that the defendant has been placed on deferred adjudication is admissible during the punishment phase even if the defendant is still serving his term of community supervision. Id. at 370. The Corpus Christi court has added that, under the 1993 amendments to article 37.07, (3)(a)(1), this type of evidence is admissible even if the underlying offense is on appeal. Williams v. State, 976 S.W.2d 330, 332 (Tex. App. Corpus Christi 1998, no pet.).

Here, even though the testimony was admissible, the court excluded it. The prosecutor was obligated to obey the court s ruling. But regardless of the prosecutor s misconduct, Castaldo cannot show harm. We will disregard any error that does not affect a substantial right of the complaining party. Tex. R. App. P. 44.2(b); Tex. R. Evid. 103. "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)). We do not reverse if, "after examining the record as [a] whole, [we have] fair assurance that the error did not influence the jury, or had but a slight effect." Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (citing Hudson, 675 S.W.2d at 511). Overwhelming evidence of guilt is a factor to be considered. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002).

The prosecutor s question was not answered. It is but an assumption that the jury believed, based on the question alone, that Castaldo had a prior brush with the law. Accordingly, "after examining the record as [a] whole, [we have] fair assurance that the error did not influence the jury, or had but a slight effect." Schutz, 63 S.W.3d at 444.

We overrule the issue.

Conclusion

Having overruled Castaldo s remaining issues on remand, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed November 27, 2002

Do not publish

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