Carlos Castillo v. State

Opinion issued January 7, 2010

In The

Court of Appeals

For

The

First District of Texas

NO. 01-08-00188-CR

CARLOS CASTILLO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1104753

MEMORANDUM OPINION

A

jury convicted appellant, Carlos Castillo, of escaping from police

custody. See Tex. Penal Code Ann . § 38.06(a)(1)

(Vernon Supp. 2009). The trial court

assessed punishment at 25 years’ confinement.

In three issues, appellant challenges the legal sufficiency of the

evidence, specifically arguing that there was no evidence that he was arrested

because he was neither handcuffed nor told that he was under arrest and because

there was no evidence that appellant possessed a usable quantity of marihuana, i.e. ,

four ounces or more. We modify the

judgment of the trial court and we affirm as modified.

Background

In

February 2007, an undercover police officer with the narcotics division of the

Pasadena Police Department received an anonymous tip that a shipment of

marihuana would be delivered to a certain address that same day. The officer drove past the address the

informant had given him, recorded the license plate number of a vehicle parked

in the driveway, and parked down the street to set up surveillance of the

house. The officer determined that the vehicle parked in the driveway was

registered to a man named “Jose,” which the officer thought was consistent with

the informant = s tip that the marihuana would be

delivered to a man named “Joe.”

Around

6:00 p.m., the undercover officer spotted appellant driving a maroon truck very

slowly through the neighborhood, looking in every direction, even looking

directly at the officer. Appellant left

the truck running in the center of the street and went inside the house that

the officer was watching. The officer

saw appellant greet a Hispanic man at the door.

While appellant was inside the house, the officer learned that the

maroon truck was licensed to two people who lived in Edinburg, Texas, near the

Mexican border. After about 20 minutes,

appellant and the other man came out of the house, stood in the yard talking,

and shook hands. Appellant went back to

his truck and drove away; the other man returned to the house.

The

undercover officer, who was working with a uniformed officer in a marked car,

broadcast information about appellant = s truck and where it was headed. The undercover officer then drove around the

corner, where he saw appellant park the maroon truck beside a house. After several minutes, a four-door, black

pickup truck pulled into the driveway.

Appellant left the maroon truck running and got out to greet the driver

of the black truck. The two men shook

hands and looked in the back of the black truck. The other man lifted up a tarp

or covering, showing appellant something.

The undercover officer testified at trial that appellant “appeared to be

very jubilant. He was happy.” The men replaced the covering, shook hands,

and patted each other on the shoulder.

Appellant

and another man each took a large, bulky object out of the truck and into the

house, locking the black truck and arming the alarm system as they left. To the undercover officer, the object looked

like a woven, plastic gunnysack with bright orange writing all over it. The officer could see that the object had

rope handles, but he ruled out the possibility that it could be a

suitcase. The men came out about 20 minutes

later and got into the maroon truck where appellant sat in a passenger seat. The undercover officer contacted uniformed

officer R. Carro, and followed the truck.

The

undercover officer watched the maroon truck turn without signaling, and he

shared this information with Officer Carro who then pulled behind the maroon

truck. Officer Carro saw the maroon

truck make another turn without using a turn signal, and he initiated a traffic

stop with the undercover officer = s agreement.

Officer

Carro observed that the driver was very nervous. When the driver rolled down the window, Officer

Carro smelled the strong odor of burned marihuana emitting from the

vehicle. Officer Carro did a pat-down

search and felt something that he believed was a weapon, which turned out to be

drug paraphernalia. Officer Carro

arrested the driver for possession of drug paraphernalia.

When

Officer Carro stopped the maroon truck, the undercover officer also pulled

over. The undercover officer approached

the truck from the passenger side, and he found appellant sitting in the rear

passenger-side seat. The officer

identified himself as a police officer and asked appellant for

identification. The officer asked

appellant background questions in English, and appellant responded in

English. Appellant told the undercover

officer that he had been visiting friends in Pasadena and had just come from a

restaurant. Appellant denied ever having

been on the streets in question. The undercover officer told appellant that he

was investigating a marihuana case and that he had been watching appellant and

knew that appellant did not just come from a restaurant. Although the undercover officer testified at

trial that his unmarked car was not equipped with a video camera, he testified

that he may have told appellant that he captured the entire transaction on

videotape. The officer explained at

trial that this sort of ruse is a commonly used investigatory technique.

The

undercover officer asked appellant if he would return to the house where the

black truck was parked to verify that he had never been there before, and

appellant agreed to do so, riding over to the house in the back of a marked

police car. The undercover officer

testified at trial that there is a steel barrier between the backseat and the

front seat and that the back doors open only from the outside.

The

house where the black truck was parked was about a minute away from where

Officer Carro stopped the maroon truck.

The undercover officer knocked on the front door, and the woman who

opened the door gave consent to search the house and the truck, which she said she

owned. As the undercover officer

approached the black truck, he smelled the odor of green, unburnt

marihuana. He lifted the blanket that he

saw earlier and found large block objects in woven plastic gunnysacks, with

orange, brown, and black printing on them.

They were similar to the object that he saw appellant carry into the

house earlier that evening. The officer

opened one of the packages with a pocketknife, and he found a felony amount of

marihuana.

The

undercover officer then saw appellant = s reaction to his discovery:

As I walked away from the vehicle

and was shutting the door and was going to go back inside the house, I actually

was going to talk to Officer Carro and could see [appellant] through the glass

of the vehicle. . . . He was paying very close attention to our

activities. He was glaring out the

window and he appeared like the wind had come out of your sails. I don = t know

how to describe it other than just > slumped. = . . . [H]e just was looking out the window and was

just kind of slumped over, as before he was, you know sitting upright.

The

undercover officer went back inside the house briefly, and when he came

outside, appellant was not in the police car.

Officer Carro testified that he saw the felony amount of marihuana in

the black truck, and then he heard “glass breaking, a window being kicked out.” When Officer Carro turned around, he saw

appellant climbing out of the police car through the broken window. Officer Carro advised dispatch that appellant

was running away, and he chased appellant, yelling A stop @ at least seven times. At one point, Officer Carro had to stop

chasing appellant to avoid being hit by oncoming traffic. Additional police officers, including a K-9

unit, responded to the scene and set up a perimeter to catch appellant. Appellant continued running away, crossing

three lanes of highway traffic, jumping over a three-foot wall, and jumping 10

feet from the highway to the frontage road before being re-arrested by another

police officer.

Sufficiency of the Evidence

In

his first issue, appellant contends that the evidence was legally insufficient

to prove his escape conviction because he was never handcuffed or told that he

was under arrest. Appellant argues that

because he voluntarily got into the police car, he was not in custody, and he

was merely being temporarily detained for investigation.

A. Standard

of Review

When

evaluating the legal sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict and 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, 319 , 99 S. Ct. 2781, 2789 (1979); Drichas v. State , 175 S.W.3d

795, 798 (Tex. Crim. App. 2005). The

standard is the same for both direct and circumstantial evidence cases. King v. State , 895 S.W.2d 701, 703

(Tex. Crim. App. 1995). We do not

resolve any conflict of fact, weigh any evidence, or evaluate the credibility

of any witnesses, as this is the function of the trier of fact. See Adelman

v. State , 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State ,

819 S.W.2d 839, 843 (Tex. Crim. App. 1991).

In conducting our review, we resolve any inconsistencies in the evidence

in favor of the verdict. Matson ,

819 S.W.2d at 843 .

B. The Law of Arrest

“A

person commits an offense if he escapes from custody when he is . . . under arrest

for . . . an offense.” Tex. Penal Code Ann. § 38.06(a) (Vernon

2003). A completed arrest distinguishes

the offense of escape from the offenses of evading or resisting arrest. Sample v. State , 292 S.W.3d 135, 137,

n.1 (Tex. App. C Houston [14th Dist.] 2008, pet. ref = d) (citing Medford v. State ,

13 S.W.3d 769, 773 (Tex. Crim. App. 2000)).

An arrest is complete when: (1) a person = s liberty of movement is successfully

restricted or restrained, either by an officer = s physical force or the suspect = s submission to the officer = s authority; and (2) if a reasonable

person in the suspect = s position would have understood the situation to constitute

a restraint on freedom of movement of the degree which the law associates with

formal arrest. Medford , 13 S.W.3d

at 773 ; see Tex. Code Crim. Proc.

Ann . art. 15.22 (Vernon 2005) (“A person is arrested when he has been

actually placed under restraint or taken into custody by an officer or person

executing a warrant of arrest, or by an officer or person arresting without a

warrant.”).

“Because

the occurrence of an arrest cannot be determined by any bright‑line test,

whether an arrest has occurred must be determined on a case‑by‑case

basis by examining the totality of the circumstances.” Sample , 292 S.W.3d at 137 . In addition, “what may begin as a consensual

encounter . . . may evolve into an arrest.”

Josey v. State , 981 S.W.2d 831, 838 (Tex. App. C Houston [14th Dist.] 1998, pet. ref = d) (quoting Francis v. State ,

992 S.W.2d 176, 178 (Tex. Crim. App. 1996) (Baird, J., concurring and

dissenting)).

To

effectuate a full custodial arrest, an officer must have probable cause to

believe the person arrested has committed or is committing an offense. See Amores v. State , 816 S.W.2d 407,

411 (Tex. Crim. App. 1991). Probable

cause to arrest exists when the facts and circumstances within the arresting

officer = s knowledge and of which he has

reasonably trustworthy information are sufficient in themselves to warrant a

person of reasonable caution to believe an offense has been or is being

committed. See id. at 413 . Probable cause requires more than mere

suspicion but far less evidence than that needed to support a conviction or to

support a finding by a preponderance of the evidence. See Guzman v. State , 955 S.W.2d 85, 87

(Tex. Crim. App. 1997) . Probable

cause may arise from information supplied by a confidential informant, provided

the information is corroborated. See

Eisenhauer v. State , 678 S.W.2d 947, 952 (Tex. Crim. App. 1988).

C. Under

Arrest?

Here,

the undercover officer received an anonymous tip that a man named Joe would

receive a shipment of marihuana. This

tip was corroborated, in part, by the undercover officer = s discovery that the vehicle parked

in front of the house specified by the informant was registered to a man named

Jose. The undercover officer followed

appellant and watched him carry a package into a house, after inspecting the

shipment of what was later determined to be marihuana in the black truck,

shaking hands with the other man, and patting him on the shoulder. The appellant lied to the undercover officer

about his having been at the house that was the target of the

investigation. The undercover officer

informed appellant that the officer was conducting a marihuana investigation,

that he had been watching appellant, and that he knew appellant had not just

come from a restaurant as appellant claimed.

When appellant agreed to return to the house to verify whether he had

been there, the undercover officer placed appellant in the back of a police car

that was fitted with a steel screen and that had a door that could only be

opened from the outside.

Once

back at the house, appellant watched the undercover officer approach the black

truck and cut into a package similar to the one appellant had taken to the

house earlier. After the undercover

officer confirmed that the packages in the black truck were marihuana, he

watched the appellant “glare” at him and then slump in his seat, a gesture that

indicated appellant = s awareness that the officer had discovered the

marihuana. Finally, neither the

undercover officer nor any other officer ever told appellant that he was free

to leave.

We

agree with appellant to the extent that, when he initially entered the back

seat of the patrol car, he was not in custody but was merely being temporarily

detained for investigation. The

question, however, is whether the temporary investigation of appellant had

become a custodial arrest because of the development of probable cause to

arrest appellant for possession of marihuana once the contents of the packages,

similar to the one appellant had taken into the house, were established as

felony amounts of marihuana. Because

appellant = s liberty of movement was being

restricted, the question is whether a reasonable person in appellant = s position would have understood that

he was under arrest. See Medford ,

13 S.W.3d at 773 . While appellant was

not expressly told by the officers that he was under arrest, as in Sample ,

we hold that a reasonable person in appellant = s position who: (1) had been informed that he was being taken

back to the house for a marihuana investigation; (2) had been told that the

officers had observed him at the house (and, of course, he knew that he had

taken a package containing marihuana from the black truck into the house); (3)

had observed the officer = s discovery of the marihuana in similar packages in the black

truck thereby producing the information necessary to arrest him; (4) had

indicated by his body language his awareness that the officers had the

information necessary to arrest him; and (5) was being detained in the back

seat of a patrol car, would have understood the situation to constitute a restraint

of freedom of movement to the degree which the law associates with formal

arrest. See id .

Viewing

the evidence in the light most favorable to the verdict, we hold that the

evidence was legally sufficient to prove that appellant escaped from custody

while he was under arrest, and we overrule appellant = s first issue.

D. Possession

In

his second and third issues, appellant contends that there is no evidence of

his connection to the marihuana in the black truck, which is the only marihuana

recovered, and that there is no evidence that he possessed a felony amount of

marihuana. To the extent that appellant = s points are challenging the

sufficiency of the evidence to prove that appellant was guilty of possession of

marihuana, we decline to address them. The State does not have to prove the

offense for which appellant was arrested beyond a reasonable doubt, in addition

to proving that appellant was under arrest for said offense. To the extent that appellant is challenging

the lawfulness of appellant = s arrest, appellant has submitted no authority to support the

proposition that the State has any such burden.

The offense of escape is committed by escaping from custody when under

arrest. There is no statutory

requirement that the arrest be lawful.

Having determined in point one that appellant was under arrest when he

escaped, we decline to address the lawfulness of that arrest. [1]

We

overrule appellant = s second and third issues.

Reforming

the Judgment

The

State alleged two enhancement paragraphs in the indictment, unauthorized use of

a motor vehicle and burglary of a motor vehicle, both of which were felonies at

the time of conviction, 1986 and 1991.

The trial court sentenced appellant to 25 years’ imprisonment. The judgment reflects appellant = s conviction for escape as a

second-degree felony. During the

punishment phase, the trial court stated that it found both enhancements to be

true. However, the judgment reflects A N/A @ as to both the plea and the findings

for each enhancement.

Escape

is a felony of the third degree if the “actor is under arrest for, charged

with, or convicted of a felony.” Tex. Penal Code Ann . § 38.06(c)(1)

(Vernon Supp. 2008). The punishment

range for a third degree felony is 2 to 10 years’ imprisonment. Tex.

Penal Code Ann . § 12.34(a) (Vernon 2003). Escape is a felony of the second degree “if

the actor to effect his escape causes bodily injury.” Id. §

38.06(d) (Vernon Supp. 2009). The

punishment range for a second-degree felony is 2 to 20 years’ imprisonment. Id. §

12.33(a) (Vernon 2003). Here, there was

no evidence of appellant = s having caused bodily injury, so the judgment should have

indicated that appellant was convicted on the third degree felony of

escape. Moreover, because the record

also reflects that appellant contested the truth of the enhancement allegations

and that the trial court found both enhancements true, the judgment should

reflect pleas of “not true” and findings of “true” to the enhancement

paragraphs rather than “N/A.”

The

enhancement statute also provides:

(d) . . . [I]f it is shown on the trial of a felony

offense other than a state jail felony punishable under Section 12.35(a) that

the defendant has previously been finally convicted of two felony offenses, and

the second previous felony conviction is for an offense that occurred

subsequent to the first previous conviction having become final, on conviction

he shall be punished by imprisonment in the Texas Department of Criminal

Justice for life, or for any term of not more than 99 years or less than 25

years.

Id. § 12.42(d) (Vernon Supp. 2009). Thus, appellant = s punishment of 25 years’ imprisonment,

which was agreed upon by both appellant = s counsel and the State, is the

minimum punishment for a third or habitual offender under section 12.42(d) of

the Texas Penal Code.

Based

on the record, we reform the trial court = s judgment to reflect that appellant

was found guilty of the third degree, not the second degree felony escape, and

to reflect appellant = s plea of “not true” and the trial court = s findings of “true” to each

enhancement paragraph, rather than “N/A.”

Conclusion

Having

reformed the judgment of the trial court to show that appellant was found

guilty of the third degree felony escape, to show that appellant pleaded “not

true” to the enhancement paragraphs, and to show that the trial court found

both enhancement paragraphs to be “true,” we affirm the judgment as reformed.

Tim Taft

Justice

Panel consists of Chief Justice Radack and Justices

Sharp and Taft. [2]

Do not publish.

Tex. R. App. P.

47.2(b).

Justice Sharp, dissenting.

1 If we were to address the sufficiency of the evidence

supporting appellant = s possession of a felony amount of marihuana, we would

find the evidence sufficient. Here, the undercover officer and Officer Carro both

testified that there was a felony amount of marihuana in the black truck. The

undercover officer testified that he saw appellant take a package, which looked

just like the packages of marihuana later discovered in the black truck, from

the black truck into the house. Also,

appellant = s actions C driving

extremely slowly around the neighborhood, shaking hands with the other man and

patting him on the back, appearing happy or jubilant upon seeing the shipment

of marihuana, glaring at the undercover officer, and slumping in the seat C are all actions that support appellant = s knowing possession of the marihuana. Viewing the evidence in the light most

favorable to the verdict, we would hold that the evidence was legally

sufficient to prove that appellant escaped from custody while he was under

arrest for knowingly possessing a felony amount of marihuana.

2 Justice

Tim Taft, who retired from the First Court of Appeals effective June 1, 2009,

continues to sit by assignment for the disposition of this case, which was

submitted on May 26, 2009.