                             NUMBER 13-05-00423-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


KIMBERLY CASTILLO,                                                             Appellant,

                                             v.

THE STATE OF TEXAS,                                                             Appellee.


   On appeal from the 28th District Court of Nueces County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
            Memorandum Opinion by Chief Justice Valdez
       A jury convicted appellant Kimberly Castillo of capital murder of a child. See TEX .

PEN . CODE ANN . § 19.03(a)(8) (Vernon Supp. 2007). The trial court assessed the automatic

life sentence. Id. § 12.31(a). By two issues, appellant asserts that the trial court erred by

(1) failing to suppress her videotaped confession, and (2) by denying her request for an

instruction on the lesser-included offenses of murder and manslaughter. We affirm.
                                     I. BACKGROUND

       On October 4, 2004, the Nueces County police department responded to a report

of a child unconscious and not breathing. Officers Jerry Neal and Bob La Rock were the

first responders on the scene; paramedics arrived minutes later.

       Officer Neal testified that once he found appellant’s apartment, he banged on the

door for approximately two minutes but received no response. Minutes later, appellant

arrived and unlocked the door; paramedics rushed in and found twenty-month old J.G.

lying face up on a bed. Paramedic Alonzo Yanez testified that J.G. was not breathing and

had no pulse; emergency life-saving measures were then initiated. Yanez further testified

that once J.G’s clothes were removed, he noticed bruises and bite marks all over his body.

Officer Neal also testified that he noticed what seemed to be bite marks all over J.G.’s

body. J.G. was rushed to Driscoll Children’s Hospital.

       Critical care physician John Maher, M.D., testified that when J.G. was admitted he

was in complete cardiac arrest and was receiving artificial life support. He added that

because J.G. seemed otherwise healthy, they began to look into “non-accidental trauma.”

He concluded that the cause of J.G’s injuries was asphyxiation, which caused his lungs to

shut down and his heart to stop beating. He added that the severity of J.G.’s injuries

indicated that he must have been held down by the neck for a period of five or six minutes.

He further testified that J.G. was covered with what seemed to be human bite marks. Dr.

Maher further stated that Driscoll personnel were never able to revive J.G. to where he

could breathe on his own and that J.G. was declared brain dead on October 7, 2004.

       Intensive care specialist David Ryan, M.D., also treated J.G. Dr. Ryan testified that

the bite marks and bruises all over J.G.’s body were clear evidence of abuse. He added

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that x-rays showed J.G. had what appeared to be two severe rib fractures. He further

testified that J.G.’s injuries indicated that persistent pressure was applied to his neck for

five or six minutes, and J.G. must have struggled for at least two minutes.

       Nueces County Medical Examiner Ray Fernandez, M.D., performed an autopsy on

J.G.’s body on October 8, 2004. Dr. Fernandez first testified that he found hemorrhaging

in the muscles on the side of J.G’s neck which was consistent with a right handed person

squeezing it. He further testified that J.G. had cerebral edema–swelling of the brain– which

would have required at least four to five minutes of persistent pressure applied to J.G’s

neck. He concluded that the cause of J.G’s death was anoxic brain injury due to manual

strangulation.

       Corpus Christi Police Department’s child abuse investigator Sergeant Michael Hess,

took appellant’s statement on two separate occasions. The first occurred at the hospital,

where appellant explained to Sergeant Hess that she heard J.G. and her daughter jumping

on the bed ten minutes before she found J.G. on his stomach. She rolled him over and

saw that his lips were blue and that he was not breathing. She then went to a pay phone,

called 911, and stayed on the phone until the ambulance arrived.

       The second interview occurred on October 6, 2004. This interview was held at a

local Corpus Christi police station and was videotaped. The interview lasted approximately

one and half hours. Sergeant Hess began the interview by advising appellant of her

Miranda rights; appellant then read the rights to herself, indicated that she understood her

rights, and signed a voluntary waiver of those rights. Although appellant initially denied

knowing what happened to J.G., she eventually confessed to treating J.G. badly, to biting

him whenever he made her upset, and to choking him on October 4, 2004.                  The

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videotaped interview was admitted into evidence.

       After a jury trial, appellant was found guilty of capital murder. The trial court

assessed the automatic life sentence. This appeal ensued.

                               II. VIDEOTAPED CONFESSION

       As her first issue, appellant contends the trial court erred in failing to suppress her

videotaped confession because Sergeant Hess (1) made false statements, (2) was

threatening and coercive, and (3) made improper promises. As an alternative argument,

appellant contends her confession was obtained as a result of an illegal arrest. We

disagree.

                                 A. Standard of Review

       We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We will apply a deferential

review of the trial court’s determination of the historical facts and a de novo review of the

law’s application to those facts. Carmouche, 10 S.W.3d at 327. When the trial court’s

rulings do not turn on the credibility and demeanor of the witnesses, we review de novo a

trial court’s rulings on mixed questions of law and fact. Johnson v. State, 68 S.W.3d 644,

652-53 (Tex. Crim. App. 2002).

                                 B. Voluntary Statement

                                    1. Applicable Law

       A statement made by the accused may be used in evidence against him if it appears

that it was freely and voluntarily made without compulsion or persuasion. See TEX . CODE



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CRIM . PROC . ANN . art. 38.21 (Vernon 2005); State v. Terrazas, 4 S.W.3d 720, 723 (Tex.

Crim. App. 1999). Whether the accused’s statements are voluntary is determined from all

the circumstances surrounding the making of the statement. See Wyatt v. State, 23

S.W.3d 18, 23 (Tex. Crim. App. 2000) (citing Penry v. State, 903 S.W.2d 715, 748 (Tex.

Crim. App. 1995)). A statement is not voluntary if there is “official, coercive conduct of

such a nature that any statement obtained thereby was unlikely to have been the product

of an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912

S.W.2d 199, 211 (Tex. Crim. App. 1995); see Denoso v. State, 156 S.W.3d 166, 175 (Tex.

Crim. App.–Corpus Christi 2005, pet. ref’d).

                                  2. False Statements

       Appellant first argues that her statement was not voluntary because, during the

videotaped interview, Sergeant Hess represented to appellant that he had spoken with a

dentist about measuring the bite marks that were found on J.G’s body. At trial, however,

Sergeant Hess acknowledged that he had made up the story in hopes that appellant would

think he knew more about the case than he actually did. He added that he had only

spoken to the nurses about the bite marks but planned to talk to the doctors as well.

       “Trickery or deception does not make a statement involuntary unless the method

was calculated to produce an untruthful confession or was offensive to due process.”

Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). The ultimate question is

whether the suspect’s will was overborne. Id. Moreover, “of the numerous types of police

deception, a misrepresentation relating to an accused’s connection to the crime is the least

likely to render a confession involuntary.” Green v. State, 934 S.W.2d 92, 100 (Tex. Crim.



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App. 1996). Sergeant Hess’s misrepresentation that he had spoken to a dentist about the

bite marks clearly falls into this category. Any deception such as alleged by appellant

directly concerned her connection to the crime and was not calculated to compel a false

statement. See Rodriguez v. State, 934 S.W.2d 881, 890-91 (Tex. App.–Waco 1999, no

pet.) (involuntary confession not found where officer falsely told defendant that victim had

implicated defendant on victim’s deathbed); Mason v. State, 116 S.W.3d 248, 259 (Tex.

App.–Houston [14th Dist.] 2003, pet. ref’d) (involuntary confession not found where officer

falsely told defendant that medical examination showed penetration of victim).

                                     3. Coercive Statements

        Appellant next claims that her statement was not voluntary because Sergeant Hess

was threatening and coercive. Specifically, appellant contends that Sergeant Hess used

undue “psychological pressure” by reading her mother’s statement,1 asking if she believed

in God, and asking whether she thought that she had an angel watching over her. She

also contends that she was coerced by Sergeant Hess’s tone of voice.

        The video demonstrates that appellant confessed to choking J.G. approximately

seventy-six minutes after the interview started. During the interview, Sergeant Hess never

yelled at appellant, never physically threatened her, and never made an improper

statement of the law. Considering the allegedly improper statements made by Sergeant

Hess in light of the surrounding circumstances, none of the statements were of such a

coercive nature as to make appellant’s confession involuntary. Although it is clear that

Sergeant Hess used religion to make appellant feel guilty or remorseful, none of these


        1
           Appellant’s m other gave Sergeant Hess a written statem ent where she m entioned that it m ay be
possible that appellant killed J.G.

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statements was so coercive that appellant’s free will would have been overwhelmed.

                                       4. Promises

       Appellant also contends that her confession was not voluntary because she was

influenced by promises made to her by Sergeant Hess. Texas law prohibits the use of any

confession given by a defendant under the influence of an improper promise. The Texas

Court of Criminal Appeals has summarized the rule as including four requirements. “The

promise must be:      (1) of some benefit to the defendant, (2) positive, (3) made or

sanctioned by a person in authority, and (4) of such character as would be likely to

influence the defendant to speak untruthfully.” Sossamon v. State, 816 S.W.2d 340, 345

(Tex. Crim. App. 1991); see Harty v. State, 229 S.W.3d 849, 856 (Tex. App.–Texarkana

2007, pet. ref’d). To determine whether a promise is likely to influence the defendant to

speak untruthfully, “an appellate court must look to whether the circumstances of the

promise made the defendant ‘inclined to admit a crime he had not committed.’” Sossamon,

816 S.W.2d at 345 (quoting Fisher v. State, 379 S.W.2d 900, 902 (Tex. Crim. App. 1964)).

       During the interview, Sergeant Hess can be heard repeatedly telling appellant that

if she told the truth he could help her. Although he never elaborates as to how he can help

her, he does on one occasion mention that “[he] can fix a lot of this stuff” and also that if

she told him the truth he may be able to call the doctors so that “maybe they can fix

something.” These are mere general statements which clearly do not rise to a level of an

unequivocal promise. At no point during the interview does Sergeant Hess induce

appellant to confess by implicitly or explicitly suggesting a deal, bargain, agreement,

exchange, or contingency. See Chambers v. State, 866 S.W.2d 9, 20 (Tex. Crim. App.



                                             7
1993). Appellant has failed to demonstrate that the party in authority positively and

unequivocally promised a benefit in return for a confession. Id.; see Ramirez v. State, 76

S.W.3d 121, 126-27 (Tex. App.– Houston [14th Dist.] 2002, pet. ref’d).

       Based on the foregoing, we conclude that appellant’s statement was freely and

voluntarily made, therefore, the trial court properly admitted appellant’s confession into

evidence.

                                      C. Illegal Arrest

       Appellant next argues that her confession was obtained as a result of an unlawful

arrest. A person is not unlawfully arrested if she is not placed under restraint or taken into

custody. Chambers, 866 S.W.2d at 19. An arrest is effected when a person’s liberty of

movement is restricted or restrained.        Id.   A person is “seized” under the Fourth

Amendment only if, under all of the circumstances surrounding the seizure, a reasonable

person would have believed that he or she was not free to leave. See Florida v. Royer,

460 U.S. 491, 502 (1983); Chambers, 866 S.W.2d at 19.

       Appellant met with Sergeant Hess two days after J.G. was taken to the hospital.

The record shows that she arrived with her husband Alex, she was not handcuffed, she

was admonished of her Miranda rights, and on at least two occasions she was told that the

police had no suspects. On appeal, appellant makes much of the fact that on two separate

occasions she commented that she “want[ed] to go see her baby” but, according to

appellant, Sergeant Hess refused to let her go. Although the video demonstrates that

appellant did comment that she wanted to see her baby, at no point does she press the

issue. In fact, Sergeant Hess tells appellant that he will personally drive her to the hospital,



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but he urges her to tell him the truth before he does so. Further, the record shows that

appellant was admonished of her right to terminate the interview at any time, but she chose

not to do so. Indeed, after the seventy minute interview, appellant left the police station

without hindrance. The record simply fails to support appellant’s contention that her

confession was obtained as a result of an unlawful arrest. See Chambers, 866 S.W.2d at

19. Accordingly, appellant’s first issue is overruled.

                                III. LESSER -INCLUDED OFFENSE

         As her second issue, appellant contends that the trial court erred in refusing to

instruct the jury on the lesser-included offenses of murder and manslaughter.

                                      A. Applicable Law

         A defendant is entitled to an instruction on a lesser-included offense if (1) the lesser

offense is a lesser-included offense of the charged offense; and (2) there is some evidence

in the record that would permit a jury rationally to find that if the defendant is guilty, he is

guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App.

2006).

         Under prong one, we compare the elements of the charged offense, as modified by

the indictment, with elements of the lesser offense that might be added to the jury charge.

Id. “We compare the elements of both offenses to determine whether, in proving the

offense as charged, the State necessarily had to prove all the elements of the lesser

offense, plus something more.” Id. at 189 & n.7 (applying article 37.09 of the Texas Code

of Criminal Procedure). If prong one is met, we then consider, under prong two, whether

there is some evidence from which a jury rationally could find that, if defendant is guilty, he



                                                9
is guilty only of the lesser offense. Id at 189. At this step of the analysis, “the evidence

must establish the lesser-included offense as a valid, rational alternative to the charged

offense.” Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007).

       Here, the elements of capital murder, as alleged in the indictment, are that (1) the

defendant, (2) intentionally or knowingly, (3) caused the death of J.G., (4) by strangling him

with her hand or hands or by other means unknown to the grand jury, and (5) J.G. was

under six years of age. See TEX . PEN . CODE ANN . § 19.03(a)(8).

                       B. Murder as a Lesser Included Offense

       The elements of the lesser offense of murder are (1) the defendant, (2) intentionally

or knowingly, (3) causes the death of an individual. Id. § 19.02(b)(1) (Vernon 2003). In

comparing the elements of capital murder as alleged in the State’s indictment with the

elements of murder, the only distinction to be made is proof of the additional fact that the

victim is under six years of age. As recognized by the court of criminal appeals, see

Mckinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App. 2006), and because the State

concedes as much here on appeal, we hold that murder is a lesser included offense of

capital murder. Appellant has satisfied the first prong of the test. We next determine

whether there is evidence showing that appellant, if guilty, is guilty only of the offense of

murder. See Hall, 225 S.W.3d at 536.

       In conclusory fashion, appellant argues that she was entitled to a murder charge

because “the State’s evidence shows appellant acted knowingly when she grabbed the

child by the neck with one hand and applied pressure.” Appellant concludes that because

“there was no evidence to the contrary,” a “rational jury could have concluded that



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appellant was only guilty of murder.” We read appellant’s argument to mean that because

the State’s evidence showed appellant acted knowingly rather than intentionally, the trial

court should have instructed the jury on the lesser-included offense of murder. We

disagree.

       As previously noted, the State’s indictment reads that appellant “intentionally or

knowingly caused the death of . . . J.G, . . . and that J.G. was then and there an individual

under six years of age.” By statute, one may be convicted of capital murder if she

“commits murder as defined under section 19.02(b)(1) [of the Penal Code] and . . . murders

an individual under six years of age.” TEX . PEN . CODE ANN . § 19.03(a)(8). One commits

murder under section 19.02(b)(1) if she “intentionally or knowingly causes the death of an

individual.” Id. § 19.02(b)(1) (emphasis added). It follows then, that a person need not

“intentionally” cause death to be found guilty of murder; it suffices if a person acted

“knowingly.” Logically, to the extent that a knowing (as opposed to an intentional) mens

rea is sufficient, and if the decedent is also under six years of age, the accused has

performed acts sufficient to satisfy the elements of capital murder. See Darnes v. State,

118 S.W.3d 916, 920 (Tex. App.–Amarillo 2003, pet. ref’d).

       Again, the State indicted appellant for intentionally or knowingly causing the death

of an individual under six. Moreover, the trial court charged the jury in a similar, disjunctive

fashion. So, the mere fact that appellant may have acted in a knowingly rather than

intentional fashion does not insulate appellant from being convicted of capital murder. As

previously illustrated, she could be found guilty of the charge if the State proved, and the

fact-finder concluded, that she acted with a knowing state of mind. See id. at 921.

Accordingly, we conclude that there is no evidence that would permit a rational jury to find

                                              11
that if appellant is guilty, she is guilty only of murder. See Hall, 225 S.W.3d at 536 (stating

there must be some evidence in the record that would permit a jury rationally to find that

if the defendant is guilty, he is guilty only of the lesser-included offense).

                    C. Manslaughter as a Lesser Included Offense

       A person commits the offense of manslaughter if he or she recklessly causes the

death of an individual. TEX . PEN . CODE ANN . § 19.04(a) (Vernon 2003). We have

previously recognized that involuntary manslaughter is a lesser-included offense of capital

murder, we therefore conclude that the first part of the test for determining whether a

defendant is entitled to an instruction on a lesser offense is satisfied. see Yanez v. State,

187 S.W.3d 724, 740 (Tex. App.–Corpus Christi 2006, pet. ref’d) (citing Adanandus v.

State, 866 S.W.2d 210, 232 n.21 (Tex. Crim. App. 1993)). We now turn to the second part

of the test. See Hall, 225 S.W.3d at 536.

       Appellant asserts that the evidence shows that appellant never intentionally or

knowingly caused J.G’s death. She adds, “what it does show is that appellant tried to stop

the child from screaming and in doing so applied too much pressure with one hand on the

child’s neck.” She concludes that “this was an act of recklessness and the [trial] court

should have allowed the requested [manslaughter] charge.”

       When a person recklessly causes the death of an individual, the offense is

manslaughter. TEX . PEN . CODE ANN . § 19.04(a). A person acts recklessly with respect to

the result of his or her conduct when he or she is aware of but consciously disregards a

substantial and unjustifiable risk that the result will occur. See TEX . PEN . CODE ANN . §

6.03(c) (Vernon 2003). The risk must be of such a nature and degree that its disregard



                                              12
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. Id. The

offense of manslaughter “involves conscious risk creation, that is, the actor is aware of the

risk surrounding his conduct or the results thereof, but consciously disregards it.” Yanez,

187 S.W.3d at 741-42 (quoting Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App.

2005)). As previously noted, one commits the offense of murder and consequently capital

murder if he or she intentionally or knowingly causes the death of an individual. Thus, “the

question presented is whether there was some evidence presented at appellant’s trial that

would permit a rational jury to find that she possessed the culpable mental state of

manslaughter rather than the culpable mental state of capital murder.” Id. at 742. We now

turn to the evidence.

       Various members of appellant’s family testified that she was involved in an

acrimonious relationship. They described appellant to be hot tempered, stressed, and

always upset at her husband. The couple struggled financially and were constantly

fighting.

       J.G. was physically abused; appellant would either bite, slap, or pinch J.G’s ears

whenever he was disobedient or aggressive with the other children. Appellant confessed

to treating J.G. badly and that she would treat him differently from her other children. The

medical evidence introduced at trial showed that appellant had two fractured ribs, bruised

ears, and approximately twenty “adult-like” bite marks throughout his body. Medical

testimony indicated that the injury sustained on J.G.’s ears was consistent with having

been struck with a hard object and that the fractured ribs could have only resulted from the

use of substantial force–either a hard direct blow or extremely hard pressure directly

                                             13
applied to the rib area.

       J.G. died as the result of asphyxiation. Expert medical testimony from J.G.’s two

treating physicians indicated that steady pressure was applied to J.G.’s neck for a period

of four to five minutes with J.G. struggling for a least two minutes. Dr. Fernandez, Nueces

County Medical Examiner, testified that hemorrhaging in the muscles on the side of J.G.’s

neck was consistent with a right handed person placing their hand on his neck and

squeezing it. He added that because J.G. had swelling to the brain, sufficient pressure

must have been applied on his neck for at least four to five minutes. He concluded that

the cause of J.G.’s death was anoxic brain injury due to manual strangulation.

       Intent may be inferred from the actions or conduct of the appellant. McGee v. State,

774 S.W.2d 229, 234 (Tex. Crim. App. 1989). Intent may also be ascertained or inferred

from the means used and the wounds inflicted. Womble v. State, 618 S.W.2d 59, 64 (Tex.

Crim. App. 1981). The severity and nature of J.G’s injuries, the fact that persistent

pressure had to be applied on his neck for a period of four to five minutes, and the fact that

he was subject to prior physical abuse, indicate that appellant intentionally rather than

recklessly caused J.G’s death. We do not believe a rational jury would disregard such

evidence and consider it not to be probative of appellant’s intent to murder the child. See

Yanez, 187 S.W.3d at 743. We conclude there is no evidence in the record that would

permit a rational jury to find that if appellant is guilty, she is guilty only of manslaughter.

Id. Accordingly, we conclude the second part of the test for determining whether a

defendant is entitled to an instruction on a lesser offense is not satisfied. See Hall, 225

S.W.3d at 536. Appellant’s second issue is therefore overruled.



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                                   IV. CONCLUSION

       Having overruled all of appellant’s issues on appeal, we affirm the judgment.




                                  ROGELIO VALDEZ
                                  Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and filed
this the 13th day of March, 2008.




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