Opinion
No. 08-02-00199-CR
July 17, 2003 (Do Not Publish)
Appeal from the 106th District Court of Gaines County, Texas (TC# 01-3112).
Before Panel No. 3, BARAJAS, C.J., LARSEN, and CHEW, JJ.
OPINION
Felipe T. Castillo appeals from his conviction for engaging in organized criminal activity. We affirm. Facts On February 5, 2000, four men in a green Saturn drove down Avenue J in Seminole, Texas, stopped in front of the Ensor family residence, and fired bullets into the house and a pickup truck that was parked in front. Defendant Felipe T. Castillo was in the car's backseat. Details of the events preceding the shooting came from defense witness Anthony Jameal Savage, one of the men in the car. Savage testified that he is from Hobbs, New Mexico, and had known Castillo for five or six years by the time of trial. On February 5, 2000, Savage was at his girlfriend's apartment in Hobbs when Castillo arrived with Dante Alexander Canava and Jesse John Barrientes III in a green Saturn. They asked him to help them move furniture at Barrientes' mother's house. Savage agreed, and accompanied them to Seminole. Canava was driving, Castillo was behind him, Savage was in the front passenger seat, and Barrientes was behind him. The four remained in these positions whenever in the car. They talked about girls and why Savage was no longer in a gang. Barrientes had not joined a gang. Nobody mentioned any drive-by shooting. When the four men were near the Wal-Mart in Seminole, Savage saw Castillo pull out a black .22 caliber, and Barrientes pulled out a silver .25 caliber automatic. When Savage asked what they were doing with the guns, "they said — said that if anybody messed with us they were going to dump on them." He explained, "Like they was going to shoot somebody, you know." Castillo bought bullets for the two handguns. They then left and Barrientes gave directions to Canava as he drove to Barrientes' mother's house. Barrientes and Canava helped move boxes while Savage and Castillo were in the house. While they were driving to his grandmother's house, Barrientes asked if the others wanted "to go to the country to shoot the guns." When they arrived at the house, nobody was at home, so they headed back into town. As they approached the city limits, Castillo and Barrientes began loading the guns. The two in the backseat then switched guns and Castillo cocked the gun Barrientes gave him and placed it on the seat next to Canava. Barrientes then gave Canava directions. When the car arrived at the Ensor residence on Avenue J, Canava said, "Forget it," and started firing the gun out the window. Barrientes pushed Savage's seat forward and began firing over the top of the car. The windows were rolled down. Savage had rolled down the window on his side of the car because he was smoking a cigarette. Castillo did not shoot a gun, but when Savage protested he called Savage a "punk." Canava and Barrientes emptied the clips of their guns into the house and vehicle. The home and yard appeared occupied at the time of the shooting. During all of this, Castillo was wearing red and white. Red is the color of the Bloods street gang and Castillo is a member of the East Side Bloods. Savage testified that often initiation into a gang required the candidate to do a drive-by shooting, take a beating, commit a burglary, or do some other type of criminal activity. Immediately before the shooting, Castillo tied a red bandanna around his head. This signifies that he was "ready to start some trouble with somebody else in a different gang." Barrientes tied a white bandanna around his head. One cannot wear the gang colors unless they are a member of the gang. Booking sheets at the Gaines County Sheriff's Department reveal that Castillo and Canava are members of the East Side Bloods, but Barrientes and Savage show no gang affiliations. Both Castillo and Canava had a number of gang tattoos. Although Savage was no longer a gang member, he still had a gang tattoo. When shots were fired, the Ensor family were in their house. Ensor's youngest daughter had a friend over from across the street. After the shots, the neighbor girl's mother Janet Smith ran out to see what had happened. She heard the sound of a car "peeling out," and saw a "dark colored sporty car with a finned back" going around the corner. Marvin Ensor came out of his house and asked Ms. Smith what had happened. She said she did not know, but then she saw that the window of his pickup truck had been shot out and other bullet holes and told Ensor that it appeared that someone had shot his car. She then went back into her house and called 911. Texas State Trooper Juan Gabriel Medrano responded to a report of a "possible description of the vehicle as a late or early model blue Camaro, dark blue Camaro, with a spoiler on the trunk." Medrano waited on Highway 385 toward Odessa. He waited around twenty minutes, then started back to Seminole. As he drove, he spotted a dark green Saturn with a spoiler on the back. He saw four men inside looking over at him. As he followed the vehicle, the right rear passenger kept turning back to look at him. He also noticed the other rear passenger was wearing a red hat with a red bandanna underneath and a red shirt, indicating to him that the passenger was a member of the Bloods. This was significant because members of gangs such as the Bloods "tend to do acts of violence such as drive-by shootings." As Medrano followed, he noticed "movement" inside the car. This movement is partially explained in the testimony of Savage. He testified that after the officer was behind them, Castillo and Barrientes wiped the guns off. This, Savage believed, to remove fingerprints. While Medrano was following the Saturn, Castillo told Canava to run from the police. Savage told him not to run because he was going to tell the police that he did not have anything to do with the shooting. Savage testified that Castillo told him that "they was going to take me out if I did." Medrano followed the vehicle to a residence on County Road 406, the home of Barrientes' grandparents. All four men exited the Saturn and "started making a beeline straight for the house without looking over at [Medrano]." The officer called them over. He could smell the odor of alcohol. He let Barrientes knock on the door of the house, but no one was home. The suspects were then separated from one another. When the officer looked in the windows of the Saturn, he could see a pair of black gloves, two boxes of Remington ammunition, and a knife in the driver's door bin. Medrano did not search the car. Soon thereafter, Sergeant Pipkin of the Seminole Police Department arrived. The Ensor neighbor, Ms. Smith, came with him and identified the vehicle. Smith said the vehicle was similar to the one she had seen, but she was not positive. Sergeant Pipkin then exited the vehicle and asked Canava for the keys to the Saturn, and Canava gave him keys to a Honda that would not open the car. When Canava denied knowing where the keys to the Saturn were, Sergeant Pipkin opened the vehicle with a slim jim. In the search, he found the black pair of gloves, a butcher's knife in the driver's door bin, a Colt .22 caliber automatic, a Raven Arms .25 caliber automatic, two boxes of Remington .22 caliber ammunition in the mesh holder behind the driver's seat, another box of .25 caliber ammunition, and two magazines in the glove box, one with .22 caliber bullets, the other with .25 caliber bullets. The mesh holder was directly in front of where Castillo was sitting. The .25 caliber handgun was concealed in the backseat under the plastic console. The .22 caliber Colt was concealed between the seat and the plastic molding in the backseat of the car on the driver's side. No fingerprints were recovered from the handguns. The spent shell casings recovered from the scene of the shooting matched the firearms recovered from the green Saturn. The .22 caliber Colt was identified as stolen by the Federal Bureau of Alcohol, Tobacco and Firearms. The defense objected to this on grounds that it would bring extraneous offenses into testimony and was prejudicial to Castillo. In place, the defense offered a stipulation that Castillo owned the Colt .22 and knew how to use it. The State argued that since the gun was stolen, Castillo could not properly stipulate to ownership. The trial court did not allow the stipulation, and allowed proof of extraneous offenses because "its presence would make the Defendant's criminal intent more likely than would be assumed in its absence." Billy Triplett is a member of the Hobbs, New Mexico Police Department. He testified that he encountered Castillo on October 11, 1999, when he responded to a report of gunshots being fired in Hobbs. He identified Castillo's weapon. Officer Triplett initially returned the gun to Castillo. Later, Robert Garner claimed the firearm. Garner was called to testify that the Colt .22 automatic in this case was the same that was stolen from his store on August 30, 1999. Garner testified that two men, Michael Pittman and Andre Evans, stole the gun, but he had no idea how the gun made its way to Castillo and Castillo's acquisition of the gun could have been innocent. Evans and Pittman were identified as gang members. Garner's shop was in an area that had a lot of graffiti concerning the East Side Bloods. Detective John Beasley of the Midland Police Department testified that the Bloods engaged in a number of criminal activities, including "vandalism, narcotics use and distribution, assaults, homicides, aggravated assaults, extortion, money laundering, conspiracy." He also testified that the Bloods would be considered a "combination" under the Texas definition. He explained the colors and tattoos that show Bloods affiliation. On cross-examination, Detective Beasley admitted that he was not familiar with the particular subset of the Bloods in Hobbs, but was working from information provided by the prosecution. Officer Robert Weaver of the Hobbs Police Department testified that he met Castillo while investigating a drive-by shooting on October 27, 1996. Castillo was eventually found responsible for that drive-by and was sentenced to two years in the New Mexico School for Boys. The jury found Castillo guilty of engaging in organized criminal activity. They imposed the maximum punishment for a second-degree felony, twenty years' confinement and a fine of $10,000. The indictment for engaging in organized criminal activity need not plead the manner and means by which the underlying offense was committed Castillo's first point of error urges his indictment failed to allege the manner and means of committing the offense of deadly conduct. This was error, he argues, because there are three ways that deadly conduct can be committed and he had no way of knowing which he was expected to defend against, nor the punishment to which he was exposed. The potential punishment for an offense of engaging in organized criminal activity is directly linked to the commission of the underlying crime. Actual commission, as distinguished from conspiracy to commit, is one punishment category higher than the most serious offense listed in the statute. Tex. Penal Code Ann. § 71.02(b) (Vernon 2003). The underlying offense here is that of deadly conduct, which can either be a Class A misdemeanor or a felony of the third degree. Tex. Penal Code Ann. § 22.05(e) (Vernon 2003). Thus, a conviction for engaging in organized criminal activity for the commission of deadly conduct could bring punishment for either a state jail felony or a felony of a second degree, depending upon which provision of section 22.05 is violated. Nevertheless, in an organized criminal activity case, the State need not allege the manner and means by which the underlying offense was committed. Crum v. State, 946 S.W.2d 349, 359 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd) (citing Lucario v. State, 658 S.W.2d 835, 837 (Tex.App.-Houston [1st Dist.] 1983, no pet.)); State v. Rivera, 42 S.W.3d 323, 329 (Tex.App.-El Paso 2001, pet. ref'd); Tu v. State, 61 S.W.3d 38, 51 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). In the face of a timely motion to quash the indictment, the indictment must allege only those facts necessary to show that the offense was committed, to bar a subsequent prosecution for the same offense, and to give the defendant notice of precisely what is being charged. Rivera, 42 S.W.3d at 329 (citing Bynum v. State, 767 S.W.2d 769, 778-79 (Tex.Crim.App. 1989)). An indictment that tracks the language of the statute is legally sufficient and the State need not allege facts that are merely evidentiary. Id. A motion to quash should be granted, however, if the facts sought are essential to give notice. Id. If the facts sought are not essential in this way, the indictment need not plead evidence relied on by the State. Id. The question, therefore, is whether the defendant's motion to quash sought facts that were essential to give notice. Id. To determine this, we look to the relevant caselaw. Crum, Rivera, and Tu all dealt with underlying offenses of theft. Like deadly conduct, the grade of punishment in a theft conviction is related to the details of that underlying theft. Tex. Penal Code Ann. § 31.03(e), (f) (Vernon 2003). Castillo offers no argument distinguishing these cases, nor indeed does he discuss their relevance at all. We conclude the same analysis applied in those cases applies here. Castillo's indictment tracks the penal statute prohibiting engaging in organized criminal activity. See Tex. Penal Code Ann. § 71.02(a)(1) (Vernon 2003). The indictment was required to and did allege only that: (1) Castillo, along with Canava, Savage, and Barrientes, actually committed the underlying offense of deadly conduct on February 5, 2000, and (2) that each did so with the intent to establish, maintain, or participate in a combination. See Rivera, 42 S.W.3d at 329 (citing State v. Duke, 865 S.W.2d 466, 467-68 (Tex.Crim.App. 1993)). This was sufficient notice. The first point of error is overruled. Failure to object to alleged error in indictment waives complaint In his second point of error, Castillo claims error in the indictment's failure to set out the acts relied upon to prove recklessness under Tex. Code Crim. Proc. Ann. art. 21.15. We find Castillo has waived error on this point. Specifically, Castillo's motion to quash the indictment did not mention the failure to allege the acts of recklessness. Failure to object prior to trial to a substantive defect in the indictment forfeits the right to raise the objection on appeal. Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon 1977); Studer v. State, 799 S.W.2d 263, 268, 273 (Tex.Crim.App. 1990). The second point of error is overruled. Improper prohibition on question to venire panel was harmless In his third point of error, Castillo complains that the trial judge improperly prohibited his counsel from individually examining prospective jurors on the State's burden of proof beyond a reasonable doubt. During voir dire, Castillo's counsel attempted to ask each prospective juror if he or she would require the State to prove each element of the offense beyond a reasonable doubt, including a specific question on the element of intent. After asking two of these prospective jurors, he was stopped by the judge and forbidden from "committing" individual jurors. For the following reasons, we find any error was harmless.
i. standard of review
The trial court has broad discretion in the process of selecting a jury. Sells v. State, 2003 WL 1055328, at *3 (Tex.Crim.App. 2003); Allridge v. State, 762 S.W.2d 146, 167 (Tex.Crim.App. 1988). Generally, we leave the propriety of a particular question to the trial court, absent an abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex.Crim.App. 2002) (citing Allridge, 762 S.W.2d at 163; Faulder, 745 S.W.2d at 334). A trial court's discretion is abused only when a proper question about a relevant area of inquiry is prohibited. Id. (citing Allridge, 762 S.W.2d at 163).ii. the questions in the context of the voir dire
Dan Sullivan, counsel for Castillo, asked venire persons Clark and Cosby whether they would require the State to prove the element regarding the culpable mental state required in order to find Castillo guilty. After speaking with venire person Clark, the trial judge warned that "We can't be committing the jurors." She then suggested that Sullivan ask if the panel members could "follow the instructions." Sullivan continued his questioning by asking venire person Cosby if she would require the State to prove that Castillo "committed the offense of deadly conduct knowingly or intentionally?" After she responded that she would, the trial judge called him up and prohibited the line of questioning. Crutchfield, the attorney for another defendant, offered an alternative question:MR. CRUTCHFIELD: What if I just make a suggestion that you ask the jury after discussion here with these two ladies is there anyone that if the State fails to prove their case beyond a reasonable doubt with regard to what the Court requires will you have any problem with acquitting the Defendant? I mean, that's just a suggestion. However you want to do it.The trial judge agreed that she would "have no problem with that." Sullivan then voiced his dissatisfaction with the ruling. The trial judge responded:
THE COURT: You can do one of two things, as far as the Court goes. You can ask the question as Mr. Crutchfield indicated, which is basically asking the same thing. Everybody out there has heard it now. You can ask everybody as a whole. That will be allowed.
MR. SULLIVAN: Okay.
THE COURT: But we're not going to keep going down the list and committing each single person. And the proper question in the Court's opinion is whether they will follow the instructions given to them by the Court, and use the evidence that was presented here and hold the State to the standard of proving beyond a reasonable doubt each and every element of what is there.This Court must note that although the trial court allowed Sullivan to do "one of two things," it offered only one option. Whereas we agree that the trial court could require Sullivan to ask his question of the venire panel as a whole, we cannot agree that the question the trial court offered was the proper question to which Sullivan should have been limited. Speaking with the panel, Sullivan found some venire members had attitudes that he was obligated to pursue:
MR. SULLIVAN: . . . You see, the point I'm trying to make is that even if Mr. Castillo was a member of a street gang, or a member of something called the Bloods, or the East Side Bloods, or the West Side Bloods, or Latin Nation, or is that — that doesn't mean that he's guilty of everything that comes along when he's there, does it? Am I wrong about that? Is there anyone that believes that just the fact that you're a member of a — one of these criminal street gangs, as they're defined, makes you guilty of every offense that happens when you're there? Is there anyone that believes that? You're all pretty quiet.
UNIDENTIFIED JUROR: I think it does.
MR. SULLIVAN: You think it does?
UNIDENTIFIED JUROR: Yeah. Because it's who you associate with. Like you said, he wasn't a gangster 24 hours a day, but what you are inside is what you're going to be 24 hours a day, whether you're with —Shortly thereafter, another juror offered her opinion:
JUROR LUETTA ROBISON: Well, I'm Luetta Robison. I just think whoever you run around with — I mean, the type of people you run around with, you kind of know what they're going to do, or what they're capable of doing. And I don't know. I just —
MR. SULLIVAN: If that's an element of the offense — I mean, it's not an element of the offense. Engaging in organized criminal activity only comes into play after you determine whether or not the Defendant is guilty of shooting the gun in the house, of doing the deadly conduct thing, okay. Are you going to use the fact that he was a member of a street gang to determine whether he was guilty or innocent of that offense? That's the question — the question in the case. I mean, you know, we might as well shut down and go home if the jury is going to impose a greater burden than the law is.
JUROR LUETTA ROBISON: I don't know.
MR. SULLIVAN: Well, we're going to have to find out from everybody, because, you know, this young man is — has liberty. . . . Let's start — let's just start at the front and work our way back, because it's real important we do that. Your name is Ms. Clark?
Sullivan then turned to venire person Lillie Clark:
MR. SULLIVAN: Do you — if the evidence shows that Felipe belonged to some outfit in Hobbs called the East Side Bloods and that he was in the car when this drive-by, as it has been popularly characterized, occurred, what proof are you going to require before you find a verdict of guilty?
JUROR LILLIE CLARK: What proof?
MR. SULLIVAN: Yes, ma'am.
JUROR LILLIE CLARK: I have to go first with physical proof. You know, if he was there, was he a member, where was he in the car, how many guns were used, how many bullets were shot, what did the police do to investigate the situation, what's their testimony, what's the testimony of the people that — the victims, what's —
MR. SULLIVAN: Would you require — when I talk about elements, would you require that the State — Mr. McCrary prove that the Defendant — that Mr. Castillo knew that these guys were going to shoot the gun before the guns were shot?JUROR LILLIE CLARK: Well, yes. But how would they prove that?
MR. SULLIVAN: I don't know. But the burden is on them to prove it.
JUROR LILLIE CLARK: If they can prove their case.
MR. SULLIVAN: Well, okay. Let's investigate it some more. Not only do they have to prove it, they have to prove it beyond a reasonable doubt.
At this point, the judge warned Sullivan not to commit the jurors. Sullivan then asked venire member Clark: "I guess what I'm asking you is can you follow that part of the Court's charge where it says that you must find that Felipe Castillo intentionally or knowingly committed the offense of deadly conduct?" After she responded that she could, he followed up:
MR. SULLIVAN: But what I'm getting at is one of the elements of the offense is that you know that he committed the offense of deadly conduct intentionally or knowingly, okay.
JUROR LILLIE CLARK: Uh-huh.
MR. SULLIVAN: That's an element the State must prove. Can you go along with that?
JUROR LILLIE CLARK: Yes.
MR. SULLIVAN: Beyond a reasonable doubt?
JUROR LILLIE CLARK: Yes.
Sullivan asked a very similar question again, then asked, "Okay. Unless you find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of engaging in organized criminal activity." To which Ms. Clark replied, "Yes, I could do that."Sullivan then turned to Juror Jane Cosby with an abbreviated version of the same question:
MR. SULLIVAN: . . . Ms. Cosby, you heard me go over all this with Lillie. I guess I'm asking you, can you follow the Court's charge and require the State to prove intentionally or knowingly beyond a reasonable doubt?
JUROR JANE COSBY: Yes, sir.
MR. SULLIVAN: Whether it's two ways to commit the offense, or whether it's engaging as part of a group, or as a member of a street gang?
JUROR JANE COSBY: Yes, sir.
MR. SULLIVAN: You'll still require the State to prove that — that he committed the offense of deadly conduct knowingly or intentionally?
JUROR JANE COSBY: Yes, sir.
MR. SULLIVAN: Okay, Now, thank you.
THE COURT: Mr. Sullivan, the Court is going to interrupt again. Would you please approach the bench.
MR. SULLIVAN: Yes, ma'am.
(At the Bench, on the record.)
THE COURT: I do not want these jurors committed on every single one of these. And I think that you can ask the same question and get the — what you need to know by asking them as a whole if there is anyone who will not follow the instructions.
MR. SULLIVAN: I don't want to ask them as a whole. If the Court instructs me to do that, I would ask for an opportunity to have the jury excused where I can make my bill. He's been up there for three and a half hours, and he asked every conceivable thing of the jury, and went into great detail, and I have the obligation of protecting my client. And I'm going to do it if I can.
THE COURT: I understand that, Dan. I understand it well. But at the same time you are trying to individually commit, on certain items, each one of the jurors, and I think that you can very well cover it just as well if you will ask them if they will follow the instructions of the Court, if they will follow the law as it is given to them in the instructions, and if they will require what the Court instructs them to, and uphold the State to that standard or not.
MR. SULLIVAN: I disagree with the Court, and I want to make a bill if you stop me.
After a discussion at the bench, Sullivan asked the general "following instructions" question of the panel as a whole. Answers were derailed when a juror reported that another said, "He is guilty and they need to prove him innocent."