      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00241-CR



                                  Eric Matthew Castle, Appellant

                                                   v.

                                    The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
       NO. 12884, HONORABLE REVA TOWSLEE CORBETT, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted appellant Eric Matthew Castle of the offense of burglary of

a habitation. See Tex. Penal Code Ann. § 30.02(a)(3) (West 2003). Punishment was assessed at

25 years’ imprisonment. In four points of error, Castle asserts that the district court abused

its discretion in admitting an alleged telephone conversation between a police officer and someone

purporting to be Castle, that the State failed to provide notice of its intent to introduce an extraneous

offense, and that the evidence is factually insufficient to support the conviction. We will affirm

the judgment.


                                          BACKGROUND

                The jury heard evidence that on April 2, 2007, the Bastrop residence of James and

Janet Grabbert was burglarized and numerous items were stolen. The primary suspect in the burglary

was Castle, the boyfriend of the Grabberts’ granddaughter, Susan Uden. Evidence connecting
Castle to the crime included an alleged telephone conversation between Officer Preston Kyle of

the Bastrop Police Department and someone purporting to be Castle. During the conversation,

according to Kyle, this person confessed to committing the burglary. Also admitted into evidence

was testimony tending to show that Castle had committed an extraneous offense, specifically a

prior criminal trespass on the Grabbert residence. There was other evidence implicating Castle in

the crime, which we will review when addressing the sufficiency of the evidence supporting

the conviction.

                  The jury found Castle guilty as charged. During punishment, Castle pleaded true

to committing a prior burglary of a habitation. The jury assessed punishment at 25 years’

imprisonment, and the district court sentenced Castle accordingly. This appeal followed.


                                               ANALYSIS

Admissibility of statements made during telephone conversation

                  In his first point of error, Castle asserts that the district court abused its discretion

in admitting inculpatory statements made during a telephone conversation between Officer Kyle

and someone purporting to be Castle.1 Castle characterizes the statements made during the

conversation as inadmissible hearsay. However, if the person speaking to Kyle was in fact Castle,

then what Castle had allegedly said to Kyle would be an admission by a party opponent and would

not qualify as hearsay. See Tex. R. Evid. 801(e)(2). Thus, as the State observes, the actual issue is




       1
          These statements included admitting to the burglary, describing the property that had been
stolen, and admitting that he did not have permission to enter the home.

                                                     2
whether there was sufficient evidence to support a finding by the district court that the person

speaking to Kyle was in fact Castle.

               The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question

is what its proponent claims. Tex. R. Evid. 901(a). Telephone conversations may be authenticated

through the caller’s self-identification or other circumstantial evidence tending to show the identity

of the caller. See Tex. R. Evid. 901(b)(4); Earnhart v. State, 582 S.W.2d 444, 448 (Tex. Crim. App.

1979) (“In admitting the contents of a telephone conversation, the identity of the speaker is

sufficiently established if the message reveals that the speaker has knowledge of facts that only the

speaker would be likely to know.”).

               We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). “The sufficiency

of the predicate [for admitting evidence] is also within the sound discretion of the trial court.” Davis

v. State, 992 S.W.2d 8, 11 (Tex. Crim. App. 1996). “The trial judge does not abuse his or her

discretion in admitting evidence where he or she reasonably believes that a reasonable juror could

find that the evidence has been authenticated or identified.” Druery v. State, 225 S.W.3d 491, 502

(Tex. Crim. App. 2007). We will not reverse the trial court’s decision to admit or exclude evidence

unless its ruling lies “outside the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d

204, 217 (Tex. Crim. App. 2007).

               Kyle admitted that he had not spoken to or met with Castle prior to the telephone

conversation and thus could not be certain that it was Castle on the phone. However, Kyle testified



                                                   3
that the person with whom he was speaking identified himself as Castle and that he spoke with this

person over the phone at least “three or four times” during the investigation. Additionally, Kyle

testified that the caller advised him that he still had the stolen property and that he would have his

mother return the property to the police department. The following day, consistent with the caller’s

statements during the telephone conversation, Castle’s mother met with Kyle at the police

department and returned some of the stolen property, along with a handwritten note purportedly

signed by Castle in which he admits to and apologizes for stealing the property.2 Moreover, Castle’s

girlfriend, Susan Uden, also met with Kyle and provided information that further led Kyle to believe

that the person with whom he had been speaking was Castle. Finally, we observe that there was no

contrary evidence presented that the caller was someone other than who he claimed to be. On this

record, we cannot conclude that the district court abused its discretion in admitting the evidence.

               We overrule Castle’s first point of error.


Notice of extraneous offense

               Officer Brian Platt of the Bastrop Police Department also investigated the burglary

and testified at trial. Over objection by Castle, Platt was asked why Castle was an initial suspect

in the burglary. Platt answered, “Prior to the incident, based on my investigation, information

was obtained that Mr. Castle had a criminal trespass to that residence.” In his second point of error,




       2
          On appeal, Castle does not challenge the authenticity of the handwritten note or otherwise
contest its admissibility. We discuss this note in more detail when addressing the sufficiency of
the evidence.

                                                  4
Castle claims that the State failed to provide him with adequate notice of its intent to introduce this

extraneous offense.

                In response, the State first argues that Castle failed to preserve error on this

point because the record does not reflect what was said during a bench conference in which

defense counsel explained the basis for his objection.3 However, during a subsequent recess in the

proceedings, counsel explained on the record the grounds for his earlier objection:


       For the record, we heard evidence from an Officer Platt today and evidence was
       admitted, over my 404(b) objection, about a criminal trespass. I want the record to
       reflect that the defendant filed a request [for] notice on January 15th of this year as
       required by 404(b) of the Texas Rules of Evidence and the State only tendered notice
       of two extraneous offenses, neither of which was a criminal trespass. We were
       entitled to notice under that. . . .


We conclude that Castle preserved error. See Tex. R. App. P. 33.1.

                Rule 404(b) allows the admission of certain extraneous offenses, provided that “upon

timely request by the accused in a criminal case, reasonable notice is given in advance of trial




       3
           The record reflects the following:

       [The State]:            And from your investigation did you learn that there had been
                               a previous criminal trespass—

       [Defense counsel]:      Objection, Your Honor. May we approach?

       The Court:              All right.

       (Brief discussion at the bench and off the record.)

       The Court:              The objection is overruled, you may ask that question.


                                                  5
of intent to introduce in the State’s case-in-chief such evidence other than that arising in the

same transaction.” Tex. R. Evid. 404(b). The rule requires “reasonable” notice. Hayden v. State,

66 S.W.3d 269, 272 (Tex. Crim. App. 2001). The reasonableness of the State’s notice generally

turns on the facts and circumstances of each case. See Patton v. State, 25 S.W.3d 387, 392

(Tex. App.—Austin 2000, pet. ref’d). The mere opening of the State’s file containing an offense

report detailing extraneous offense evidence and indicating that the State is aware of the extraneous

offense does not satisfy the requirement of giving notice of the State’s “intent to introduce” such

evidence. See Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995). However, the

delivery to the defendant of documents such as witness statements detailing extraneous offenses may

constitute reasonable notice. See Hayden, 66 S.W.3d at 272-73.

               We review a trial court’s decision to admit extraneous offense evidence for abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005) (citing Mozon v. State,

991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999)). A trial court abuses its discretion when its

decision “is so clearly wrong as to lie outside that zone within which reasonable persons might

disagree.” Id. (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on

reh’g)). Additionally, any error in admitting such evidence is nonconstitutional error subject to a

harm analysis under Rule 44.2(b). See Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App.

2005) (citing Tex. R. App. P. 44.2(b)). Thus, we will not reverse the trial court’s judgment unless

the error had a substantial and injurious effect or influence in determining the jury’s verdict. Id.

(citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). Because the purpose of the

Rule 404(b) notice provision is to enable the defendant to prepare to meet the evidence of extraneous



                                                 6
offenses, we consider in our harm analysis whether the lack of notice surprised the defendant or

adversely affected his trial strategy. See id. at 825-26.

               In response to Castle’s request for notice of intent to introduce extraneous offenses,

the prosecutor provided defense counsel with a letter indicating that he would attempt to

admit evidence that Castle was a “habitual burglar” and a “drug addict.” The letter made no explicit

mention of the State’s intent to introduce evidence of Castle’s prior criminal trespass. However, in

the last paragraph of the letter, the prosecutor wrote, “Finally, any item or circumstance that I have

not mentioned but which is included in the discovery provided you, or reasonable deductions

therefrom, may be sought to be introduced either in the case-in-chief or punishment phase.” During

trial, the prosecutor stated on the record that in September 2008, several months before trial, he had

delivered to Castle numerous discovery documents, including a copy of the offense report which

referenced a statement that the Grabberts had reported to authorities that Castle had “criminally

trespassed” on their residence, “which in turn caused a lot of tension between the Castles and

the Grabberts.” Defense counsel did not dispute the prosecutor’s contention that the offense report

had been previously delivered to him or that it contained the statement concerning the criminal

trespass. The district court would not have abused its discretion in finding that the combination of

the State’s delivery of the offense report to Castle and the above statement in the prosecutor’s letter

provided reasonable notice to Castle that the State intended to introduce evidence of the prior

criminal trespass. See Hayden, 66 S.W.3d at 273 & n.15 (explaining that prosecutor is not required

to explicitly state intent to introduce extraneous offenses and that State’s delivery of documents to

defendant referencing extraneous offenses is critical factor to consider in analyzing reasonableness



                                                  7
of notice). We cannot conclude that such a finding is so clearly wrong as to lie outside that zone

within which reasonable persons might disagree.

                However, even if the State had failed to provide reasonable notice, we could not

conclude on this record that Castle was harmed. Defense counsel made no claim that he was actually

surprised by the evidence, nor did he show how his trial strategy would have been different had

the State explicitly mentioned the criminal-trespass offense in its letter. See McDonald, 179 S.W.3d

at 578-79; Hernandez, 176 S.W.3d at 825-26. In light of the fact that the criminal trespass involved

the same property and the same property owners as the charged offense, we find it unlikely that

Castle was unaware that the State would attempt to admit evidence concerning this extraneous

offense during trial. Moreover, Castle has made no claim that the extraneous offense was

substantively inadmissible and thus harmful in that regard. See Tex. R. Evid. 404(b) (“Evidence of

other crimes, wrongs or acts is not admissible to prove the character of a person in order to show

action in conformity therewith.”). We also observe that the criminal-trespass offense was not a

significant part of the State’s case. Officer Platt did not elaborate on the circumstances surrounding

the alleged offense, and it was mentioned only briefly by the State during its closing argument.

Instead, the State emphasized the other evidence connecting Castle to the charged offense, which,

as we discuss below, was considerable. In the context of the entire case, we cannot conclude that

the alleged failure of the State to provide reasonable notice of the extraneous offense affected

Castle’s substantial rights. See Allen v. State, 202 S.W.3d 364, 369-70 (Tex. App.—Fort Worth

2006, pet. ref’d).

                We overrule Castle’s second point of error.



                                                  8
Factual sufficiency

               In his third point of error, Castle asserts that “the properly admitted evidence,” which

in his view does not include the statements made in the telephone conversation with Officer Kyle

discussed above, is factually insufficient to support his conviction for burglary.4 In his fourth point

of error, Castle similarly asserts that the evidence, “while perhaps legally sufficient to support a

finding of burglary, given the erroneous admission of hearsay evidence,” is nevertheless factually

insufficient to support his conviction because, according to Castle, “the evidence was clear that

Appellant had permission to enter the home at the time of entry.”

               In a factual sufficiency review, an appellate court views the evidence in a neutral light

to determine whether the jury’s verdict of guilt was rationally justified. See Lancon v. State,

253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim.

App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Reversal for factual

insufficiency occurs only when: (1) the evidence supporting the verdict is so weak the verdict seems

clearly wrong and manifestly unjust; or (2) there is some objective basis in the record that shows the




       4
            As we have already explained, the statements made in the telephone conversation were
not inadmissible. Thus, we need not address Castle’s contention in his third point of error that only
properly admitted evidence may be considered in a factual sufficiency review. We note, however,
that the court of criminal appeals has stated that “[t]he legal and factual sufficiency standards both
require the reviewing court to consider all of the evidence.” Marshall v. State, 210 S.W.3d 618,
625 (Tex. Crim. App. 2006) (emphasis in original); see also Berry v. State, 233 S.W.3d 847, 854
(Tex. Crim. App. 2007) (“Such a factual sufficiency review requires the reviewing court to consider
all of the evidence.”); Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (“Both legal
and factual sufficiency standards require the reviewing court to consider all of the evidence.”).


                                                  9
great weight and preponderance of the evidence contradict the jury’s verdict. See Berry v. State, 233

S.W.3d 847, 854 (Tex. Crim. App. 2007); Roberts, 220 S.W.3d at 524; Watson, 204 S.W.3d at 417.

               A person commits the offense of burglary of a habitation if, without the effective

consent of the owner, the person enters a building or habitation and commits or attempts to commit

a felony, theft, or an assault. Tex. Penal Code Ann. § 30.02(a)(3). Castle concedes that there is

sufficient evidence to prove that he entered the habitation and that he committed theft. However,

he challenges the sufficiency of the evidence supporting the element that he entered the habitation

“without the effective consent of the owner.”

               Castle asserts that the only evidence that he actually lacked permission to enter the

home is the statement made to Officer Kyle over the telephone in which a person who identified

himself as Castle admitted that he did not have permission to enter the residence. We disagree. In

addition to the oral statement, the jury also considered a handwritten note allegedly signed by Castle

and delivered to the police department by Castle’s mother.5 The note provides:


       I Eric Castle give this statement.

       I broke into the Grabberts[’] house. I stole money and jewelry. When I did this I
       was extremely high on meth. I am not asking for forgiveness, just to be understood.
       I will return all jewelry with this letter as I never intended to take it. It must have
       been in the wrong box.


At the bottom of the note appears Castle’s signature and a date, “4/5/07,” which is three days

after the burglary allegedly occurred. The jury could have reasonably inferred from the statement,


       5
          Castle’s mother testified that she wrote the note under her son’s direction, writing what he
told her to write, and that her son signed the note.

                                                 10
“I broke into the Grabberts[’] house” that Castle did not have permission to enter the property.

Additionally, the jury heard testimony from the owners of the property, James and Janet Grabbert,

from which the jury could infer that Castle did not have permission to enter the property at the

time of the burglary. James testified that Castle did not have consent to be on the property, and

Janet testified that Castle had been told prior to the incident that he was no longer welcome on

the property. James further testified that one of the bedrooms from which items had been stolen

was locked on the day of the burglary, which the jury could reasonably infer was evidence that, at

the very least, Castle did not have permission to enter that room. Moreover, the State presented

evidence that the entry into the home and bedroom had been forced. Officer Platt testified that the

door into the house from the garage “appeared to have been pried open with a tool” and that the door

to the bedroom appeared to have been “possibly kicked or pushed in” using “significant force.”

Also, according to Platt, the bedroom “was in shambles . . . . drawers were pulled out, the contents

of drawers were all over the floor, all over the bed, clothes, numerous credit cards and so forth.

There was just a bunch of stuff, all kinds of stuff thrown throughout the room.” The jury could have

reasonably inferred from the manner of entry and the chaotic condition of the bedroom that Castle’s

entry was without the effective consent of the owners.

                The evidence contrary to the verdict consists of the testimony of Castle’s mother, who

testified that her son used to reside on the property with his girlfriend; Janet Grabbert, who testified

that Castle would sometimes stay at the residence with her granddaughter for extended periods of

time; and Castle’s girlfriend, Susan Uden, who claimed that she had given consent for Castle to be

on the property and that she had never withdrawn that consent. However, although Uden lived at



                                                  11
the residence, there is no indication in the record that Uden was a co-owner of the property or that

she was legally authorized to act on behalf of the owners. Moreover, on cross-examination, the State

attacked Uden’s credibility as follows:


       Q:      You testified earlier that Mr. Castle had consent to come in that home; is that
               correct?

       A:      Right.

       Q:      That’s why he took the hinges off your door and broke the interior door of the
               home, is it not, because he had consent?

       A:      I don’t know.

       Q:      Is that the way you normally enter your home, instead of using a key you take
               the hinges off your door and you kick the door in? Is that the way you
               normally enter your home?

       A:      No.

       Q:      Is that the way he normally entered your home?

       A:      No.

       Q:      Okay. The truth is, you would do anything to prevent Eric Castle from being
               convicted in this case; isn’t that true?

       A:      Well, of course.


Thus, the jury could have found that Uden was not a credible witness. As for the other evidence

tending to show that Castle would sometimes stay at the property with the permission of the

Grabberts, the jury could have found that whatever consent Castle may have had in the past to be on

the property, at the time of the burglary, the property owners had withdrawn that consent.




                                                 12
               When considering the above evidence in a neutral light, we cannot say, with some

objective basis in the record, that the great weight and preponderance of the evidence contradicts

the jury’s verdict or that the verdict is clearly wrong or manifestly unjust. Even were we to disregard

the allegedly inadmissible statements made over the telephone to Officer Kyle, we cannot conclude

on this record that the evidence is factually insufficient to support the jury’s verdict.

               We overrule Castle’s third and fourth points of error.


                                          CONCLUSION

               We affirm the judgment of the district court.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 25, 2010

Do Not Publish




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