Opinion
No. 04-16-00427-CR
04-12-2017
Jerry CASTILLO, Jr., Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR9484
Honorable Lori I. Valenzuela, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice AFFIRMED
After a jury trial, Jerry Castillo Jr. was found guilty of forging a commercial instrument/check. He was sentenced by the trial court to prison for ten years. On appeal, he argues that the "trial court erred in allowing extraneous misconduct evidence of an additional commercial instrument (check) to be heard by the jury." We affirm.
BACKGROUND
Castillo was charged with fraudulently cashing a check for $1,372.82. At trial, Justin Blohm, a teller at Broadway Bank, described to the jury the verification steps taken by a teller when a person presents a check to the bank. Blohm was shown State's Exhibit 2. Blohm testified that State's Exhibit 2 was a check collected by him on June 4, 2015. The check was purportedly issued by Pipelayers, Inc. and paid to the order of "Jerry Castillo Jr., 2400 Oak Hill Dr. #1404, San Antonio, TX 78238." State's Exhibit 2 was admitted without objection. Blohm testified that when he collected the check, he wrote the Texas I.D. number and date of birth of the person who presented the check. Blohm also had the person who presented the check make a thumbprint on the check.
The next witness, Gina Martinez, a fingerprint examiner with the Bexar County Sheriff's Department, testified the thumbprint on State's Exhibit 2 matched Castillo's right thumb.
Johnny Becker, the president and owner of Pipelayers, Inc. testified his company had never hired Castillo or issued a check to Castillo for any work. According to Becker, he was very familiar with his subcontractors and had never hired Castillo. He testified his company never paid individual employees but rather issued checks to a labor leasing company called G & A. Becker testified that he and his vice president, Jennifer Hacker, are the only two people authorized to sign checks for Pipelayers, Inc. According to Becker, neither his nor Jennifer Hacker's signatures are reflected on State's Exhibit 2.
Detective Robert Sholund of the San Antonio Police Department testified that the date of birth and address reflected on State's Exhibit 2 were the same as Castillo's birthday and address.
Castillo testified in his own defense. According to Castillo, the check in question was payment for work he had done as a "heavy equipment operator." Castillo testified he was working for Jarvis Moore, Inc. at a job site located at a "government wild life park off of Shaenfield Road" when he was approached by a man named Rudy Avila. Avila asked Castillo to remove some dirt around a manhole with the backhoe he was operating: "Actually I was at a job site, a gentleman approaches me says, can I do - can you do me a favor and I'll pay you - I'll pay for doing the favor, using the machinery I was using." Castillo testified the work for Avila took about two hours. Castillo expected that when he finished, he would be paid cash by Avila. However, Avila instead asked for his name and address. Castillo later received the check in the mail. Castillo noticed that "Avila" was not on the check, but was not concerned. According to Castillo, he assumed Avila worked for Pipelayers, Inc., whose employees he saw at the job site.
On cross-examination, Castillo agreed that he had been convicted of theft five times. He also agreed theft was a crime of moral turpitude that reflected on his credibility. When asked to explain why someone would pay him $1,300 for two hours of work, Castillo claimed he was being paid for the machinery: "[H]e was telling me that it was going to be more costly if he would have to bring his own equipment onto government - rather than me just do it real quick. He said it would cost him more than $2,000 just to bring the equipment and then for me to do it real quick within two hours." Castillo admitted he did not tell his employer about doing this work for someone else, which he admitted did not reflect well on his credibility. Castillo also admitted that Avila never said he was employed by Pipelayers, Inc.; he just assumed as much because workers from Pipelayers, Inc. "were all over the job site."
Castillo was then asked if there was any reason Avila would have issued him a second check. Castillo responded, "No." At that point, the State approached the bench and argued it should be allowed to question Castillo about an extraneous offense because he had opened the door to such questioning. The State explained that Castillo had cashed a second check from Pipelayers Inc.'s account, and it wished to introduce a copy of this second check into evidence. This second check was made out to "Castillo's Do It All" and, like the other check, had Castillo's address printed on it. The check was endorsed by Castillo and presented to Broadway Bank. The State noted that the check stock and the account holder's name were identical to the other check. According to the State, the check numbers were off by one digit, and the signatures on the check were identical. Castillo objected to the admittance of this exhibit pursuant to Texas Rule of Evidence 404. The trial court sustained Castillo's objection "at this point", stating that it did not believe Castillo opened the door and did not believe the State had laid a foundation for impeachment. However, the trial court stated that it would allow the State to ask "some additional questions" to lay a proper foundation for impeachment.
The State asked Castillo if he ever worked for Avila again. He replied, "Not him, no." Castillo admitted that there was no reason why Avila would pay him a second time. Castillo testified Avila did not pay him again. Castillo was asked whether he had worked for anyone else from Pipelayers, Inc. Castillo said that he had not. The State then approached the bench again and reiterated that it was entitled to question Castillo about cashing the second check. Castillo objected pursuant to Texas Rule of Evidence 403. The trial court overruled Castillo's 403 objection.
Castillo was then asked by the State if he had been, at any time, in possession of any other check from Pipelayers, Inc. Castillo replied, "No." Castillo was asked whether he ever owned a business called "Castillo's Do It All." Castillo replied, "No." Castillo was asked whether he had cashed a check dated May 30, 2015 and made out to "Castillos Do It All, address 2400 Oak Hill Drive, Number 1404, San Antonio, Texas 78238" for the amount of $1,782.52. Castillo replied, "No, ma'am." Castillo testified clearly that he never was in possession of another check from Pipelayers, Inc.
When shown State's Exhibit 5, a copy of the second check, Castillo agreed it appeared to be identical to the first check and appeared to show his signature, but Castillo reiterated he never cashed this second check. The State then offered State's Exhibit 5. Castillo objected on best evidence grounds. The trial court sustained Castillo's objection.
The State then called Detective Robert Sholund as a rebuttal witness. Detective Sholund confirmed that a second check was presented in Castillo's name and was endorsed with Castillo's signature. Detective Sholund then compared State's Exhibit 2, a copy of the first check, with State's Exhibit 5, a copy of the second check. Detective Sholund testified that the payee of the first check was Jerry Castillo, and the payee of the second check was "Castillos Do It All." However, the address for both Jerry Castillo and Castillos Do It All were the same. Detective Sholund testified the amounts were different on the checks, but the signatures appeared to be similar. Detective Sholund noted that the account numbers were the same, the routing numbers were the same, the font was similar, and the design layout was the same. Detective Sholund noted that both checks "purported to be from Pipelayers."
The State then offered State's Exhibit 5 again. Castillo objected pursuant to Texas Rules of Evidence 402 and 403. The trial court overruled his objections. Castillo was subsequently found guilty and sentenced to ten years of imprisonment.
DISCUSSION
In his sole issue, Castillo argues that the "trial court erred in allowing extraneous misconduct evidence of the additional check to be heard by the jury." In order to preserve this issue for appellate review, Castillo must have (1) presented his complaint to the trial court by stating the grounds for his objection "with sufficient specificity to make the trial court aware of the complaint" and (2) obtained a ruling by the trial court on his objection. See TEX. R. APP. P. 33.1(a). Further, to preserve error for appeal, Castillo's trial objection must comport with the issue he raises on appeal. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App. 1995).
In support of his argument, Castillo cites the following as "law": the Fifth Amendment to the United States Constitution; section 19 of the Texas Constitution; article 1.04 of the Texas Code of Criminal Procedure; Texas Rule of Evidence 404; and Texas Rule of Evidence 403. Castillo, however, has not preserved all of these grounds for appellate review. The appellate record does not reflect that Castillo objected to evidence of the additional check pursuant to the Fifth Amendment of the Constitution, section 19 of the Texas Constitution, or article 1.04 of the Texas Code of Criminal Procedure. Thus, Castillo did not preserve those grounds for appellate review. See TEX. R. APP. P. 33.1.
Further, while Castillo did make an objection pursuant to Texas Rule of Evidence 404 when the State first attempted to question Castillo about the second check, Castillo did not obtain an adverse ruling by the trial court. See TEX. R. APP. P. 33.1. Instead, the trial court sustained his Rule 404 objection. Thereafter, Castillo did not again object pursuant to Rule 404 or obtain a running objection on that basis. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (explaining that "a party must object each time the inadmissible evidence is offered or obtain a running objection" because any error in the admission of evidence "is cured where the same evidence comes in elsewhere without objection"). Thus, Castillo has not preserved for appellate review error based on Rule 404. See id.
The appellate record reflects that it was only later during Castillo's testimony that the trial court overruled his objections. At that point, Castillo's objections were based on Texas Rules of Evidence 402 and 403. Appellant's brief, however, does not discuss either of these evidentiary rules, but instead discusses why the trial court's ruling violated Texas Rule of Evidence 404, a ground not preserved for appellate review. Castillo does not brief why the trial court's ruling violated Texas Rules of Evidence 402 or 403. Castillo's only mention of Rule 403 in his brief is a citation to the record where he made his 403 objection and where the objection was overruled. We agree with the State that Castillo has not sufficiently briefed any error pursuant to Rule 403. See TEX. R. APP. P. 38.1(i).
Further, even if Castillo had sufficiently briefed his Rule 403 grounds, the trial court did not err in overruling his objection pursuant to Rule 403. We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).
In his reply brief, Castillo points to two places in the appellate record where his objection pursuant to Rule 403 was overruled. First, Castillo points to pages 89-91 of the sixth volume of the reporter's record where the State approached the bench stating that it intended to ask Castillo if he had cashed a second check from Pipelayers, Inc. The trial court stated that the State was entitled to ask Castillo questions to impeach him at this point. Castillo objected pursuant to Rule 403:
First of all, under 403, this - okay - this - this evidence is unfair - unfair prejudice and has a tendency to create in the jury's mind under unfair prejudices [sic] talked about an emotional response, okay. In other words, the hearing about somebody who is in possession of two checks, only in possession [sic]. There's no evidence that's been presented that he produced the checks or did anything. There's no evidence that he does anything of a . . . solicitous nature. In other words, he comes in, he produces his own ID, and he hands the checks over putting the fingerprint on the one that we had. We got - I don't know if there's one on this one or not. So it doesn't go to anything related to a - simply the chance that he possesses two checks from two different times doesn't mean that it's not the same as my example of two - two murders and two self-defenses. It's - it's much less likely that a person would use the same defense twice and get away with it in a murder than what we are talking about here.The trial court responded,
But I think that's what - I think that's why the line of questioning is imperative because he is in possession of - he just told this jury that he would have no reason to be in possession of those checks. . . . Because he has not worked for them, he has no commitment to them. I think to be in possession is one thing, but he is in possession without a basis for being in possession.The trial court then overruled Castillo's Rule 403 objection, and the State continued its questioning of Castillo about the second check made out to Pipelayers, Inc. that Castillo claimed he never had in his possession and had never cashed.
Second, Castillo points to page 124 of the sixth volume of the reporter's record where he objected pursuant to Rule 403 to State's Exhibit 5, a copy of the second check from Pipelayers, Inc.:
If the Judge does admit the evidence, I'd ask that the Judge consider [the Rule] 403 balancing test, and that it's unfairly prejudicial. It tends to mislead the jury into believing - which is number one the unfair prejudice part has to do with the jury making an emotional decision with regard to the case and the misleading the jury. It may mislead the jury into believing that Mr. Castillo is involved in some sort of organized ring or something like that. He's not being charged with that. And the jury may speculate about something like that and find him guilty of the charges he hasn't - something he hasn't been charged [with].The trial court overruled Castillo's objection and allowed State's Exhibit 5 in evidence.
Pursuant to Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. TEX. R. EVID. 403. In evaluating a Rule 403 challenge, the trial court should weigh the following factors:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).
(2) the potential the other offense has to impress the jury "in some irrational but nevertheless indelible way;"
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and
(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.
In this case, the trial court did not abuse its discretion in overruling Castillo's Rule 403 objections. First, Castillo was adamant during his testimony that he was never paid a second time from Pipelayers Inc. or anyone else and that he never received or cashed a second check from Pipelayers, Inc. The admission of the evidence relating to the second check impeached his credibility regarding his claim that the first check was for work he performed. The evidence also showed, with regard to the first check, that Castillo intended to defraud the complainant and did not cash the check by mistake. Thus, the evidence of the second check was compelling. Second, the evidence did not have the potential to impress the jury in some irrational way. It was prejudicial evidence to Castillo, but all impeachment evidence is prejudicial. There is nothing in the record to reflect the evidence was unduly prejudicial. Third, the State did not spend an inordinate period of time developing the impeachment evidence. Fourth, the State did not have other evidence to impeach Castillo in his claim that the first check related to work he performed for Pipelayers, Inc., and this case turned in large part on whether the jury believed Castillo's version of the events. We therefore find no abuse of discretion by the trial court in overruling Castillo's Rule 403 objection.
We affirm the judgment of the trial court.
Karen Angelini, Justice Do not publish