                                 NO. 07-11-00289-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL E

                                    JULY 30, 2012


                        TOMMY ISRAEL CASTRO, APPELLANT

                                           v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                  NO. 11,320; HONORABLE DAN MIKE BIRD, JUDGE


Before HANCOCK and PIRTLE, JJ. and BOYD, S.J.1


                              MEMORANDUM OPINION

      Appellant, Tommy Israel Castro, appeals his conviction for the offense of felony

murder,2 and sentence of imprisonment for life in the Institutional Division of the Texas

Department of Criminal Justice and $10,000 fine. We affirm.




      1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
      2
          See TEX. PENAL CODE ANN. § 19.02(b)(3) (West 2011).
                                        Background


       On July 4, 2009, appellant and his paramour, Kristina Earnest, were together in

an apartment in Vernon, Texas, that the couple shared with two of Kristina’s children,

Kati Earnest and J.W. Bell. Just before midnight, appellant and Kristina took the five-

and-a-half-year-old Kati to the Wilbarger General Hospital’s Emergency Room. Kati’s

body was covered in bruises. Medical personnel attempted to resuscitate Kati, but she

did not respond to any of the treatments. Kati was declared dead at 12:01 a.m. on July

5, 2009.


       Appellant behaved unusually during the treatment of Kati, and throughout the

immediate investigation into Kati’s death. Medical personnel described appellant as not

being upset and showing no signs of remorse about Kati’s condition until life-saving

efforts were ceased, at which point appellant became angry.            Appellant held J.W.

throughout the treatment of Kati, seemed to be trying to cover J.W. with a hat, and

refused offers by hospital personnel to take him. Eventually, J.W. was examined. He

was discovered to have a gash on his head, and his body was covered in bruises.

During an interview with CPS investigators, appellant acted in a domineering fashion

toward Kristina, and would not allow the investigators to interview Kristina alone.


       After an autopsy was performed on Kati, both appellant and Kristina were

arrested and charged with murder.        Kristina confessed to having assaulted Kati by

hitting her in the stomach five times. However, at appellant’s trial, Kristina recanted her

confession, and testified that her confession had been coerced by appellant threatening

to harm her other children if she did not take responsibility for Kati’s death.

                                              2
       According to Kristina’s trial testimony, appellant was upset at Kati because he

claimed that she had urinated in his car the previous night. He asked Kati if she had

“peed” in the car, but Kati denied having done so. Appellant told Kristina that Kati was

lying, and directed Kristina to discipline Kati by spanking her. Not being satisfied by

Kristina’s spanking of Kati, appellant spanked Kati with a board. When Kati failed to

respond to appellant’s spanking to his satisfaction, appellant turned Kati over and

spanked her with the board across her stomach five times. Appellant then made Kati

lay on the floor before hitting her two more times across the stomach. Appellant then

stepped on Kati’s stomach twice. As a result of this assault, Kati exclaimed that she

could not take anymore. Apparently satisfied, appellant ordered Kati to accompany him

to the parking lot to clean his car.


       Later, at around 3:00 p.m., Kristina took a shower that lasted between ten and

fifteen minutes. While it was customary for appellant to come and check on Kristina

while she was showering, he did not do so on this occasion. Kristina testified that she

has no knowledge of what transpired during this time frame. After her shower, Kristina

checked on Kati, who was fidgety and seemed to be struggling to get comfortable. Kati

remained fidgety and uncomfortable throughout the remainder of the day, but began to

complain that her stomach hurt at around 7:00 or 8:00 p.m. When Kristina asked Kati

why her stomach hurt, Kati said that it was because appellant had stepped on her.


       At around 9:30 or 10:00 p.m., Kati indicated that she felt like she had to throw up.

When Kristina went to check on Kati, Kati said that she had diarrhea. Soon thereafter,

Kristina gave Kati some pork fried rice to eat.      Kati barely ate one bite, and was

                                            3
lethargic and falling asleep. After repeated requests by Kristina to take Kati to the

hospital, appellant finally relented sometime around 11:00 p.m. On the way to the

hospital, appellant told Kristina to say that the bruises on Kati were from horseplay with

other kids at the park, and that they had found Kati drowning in the bathtub.


      By his appeal, appellant presents three issues.       By his first issue, appellant

contends that the evidence is insufficient to establish that appellant committed the crime

of felony murder. By his second issue, appellant contends that there was insufficient

evidence to corroborate the accomplice witness testimony of Kristina. Finally, by his

third issue, appellant contends that the trial court abused its discretion in admitting

evidence of appellant’s extraneous bad acts through the testimony of Shyla Goodrum.


               Issue One – Sufficiency of the Evidence of Felony Murder


      By his first issue, appellant contends that the evidence was insufficient to

establish that he committed the offense of felony murder, specifically because the

evidence was insufficient to establish that he caused Kati’s injuries. Appellant premises

his argument on perceived inconsistencies in Kristina’s testimony, and the lack of

corroboration of Kristina’s accomplice witness testimony.


      In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to 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, 61 L.Ed.2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex.Crim.App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a fact finder in concluding that every element of
                                            4
the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”              Id.

(Cochran, J., concurring).    When reviewing all of the evidence under the Jackson

standard of review, the ultimate question is whether the jury’s finding of guilt was a

rational finding.   See id. at 906, 907 n.26 (discussing Judge Cochran’s dissenting

opinion in Watson v. State, 204 S.W.3d 404, 448–50 (Tex.Crim.App. 2006), as outlining

the proper application of a single evidentiary standard of review). “[T]he reviewing court

is required to defer to the jury’s credibility and weight determinations because the jury is

the sole judge of the witnesses’ credibility and the weight to be given their testimony.”

Id. at 899.


       When conducting a sufficiency review, we consider all the evidence, whether

properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App.

2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App. 1994), and

Chambers v. State, 805 S.W.2d 459, 460 (Tex.Crim.App. 1991)).              As such, even

insufficiently corroborated accomplice witness testimony can be sufficient to support a

conviction under the Jackson standard.           Taylor v. State, 10 S.W.3d 673, 684-85

(Tex.Crim.App. 2000); see McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997).


       The jury was presented with evidence that appellant was routinely abusive

toward Kristina and her children. They heard the testimony of Kristina that, on the date

in question, appellant assaulted the five-year-old Kati, including striking her on the

                                             5
stomach with a board seven times, and then stepping on Kati’s stomach two additional

times. The jury also heard evidence that Kristina took a shower during the day and that,

uncustomarily, appellant did not check on her during her shower. Upon finishing her

shower, Kristina noticed that Kati was fidgety and that she seemed to have an

increased level of discomfort.    Thus, the jury could have reasonably inferred that

appellant assaulted Kati a second time while Kristina was in the shower. The jury also

heard the testimony of the medical examiner that the internal injuries that caused Kati’s

death were consistent with having her abdomen punched and/or stepped on.

Considering all of the evidence, we conclude that there was sufficient evidence to

establish that appellant caused the death of Kati by punching and/or stepping on her

abdomen.


      Appellant contends that the evidence was insufficient to establish that he caused

Kati’s death because there was insufficient corroboration of Kristina’s accomplice

witness testimony, and due to inconsistencies within Kristina’s testimony and that of the

medical examiner.     As indicated above, the sufficiency of the corroboration of an

accomplice witness’s testimony is not relevant in assessing the sufficiency of the

evidence to support a conviction, and we will address the sufficiency of the

corroboration of Kristina’s testimony in analysis of appellant’s second issue below.


      As for the alleged inconsistencies between Kristina’s testimony and that of the

medical examiner, appellant’s own expert testified that, after the assault testified to by

Kristina, Kati would have thought she was hungry and would have been able to eat.

Furthermore, the medical examiner testified that, depending on her ability to tolerate

                                            6
pain, Kati may have been able to walk normally to appellant’s vehicle after the assault.3

Furthermore, appellant ignores the reasonable inference that the jury could have made

that appellant assaulted Kati on two occasions with the second being while Kristina was

in the shower. In fact, if the fatal assault occurred at that time, Kristina’s testimony

about Kati’s behavior between that time and her death is consistent with the testimony

of the medical examiner.


       Concluding that the evidence was sufficient to establish that appellant committed

the offense of felony murder, we overrule appellant’s first issue.


      Issue Two – Sufficiency of Corroboration of Accomplice Witness Testimony


       By his second issue, appellant contends that the evidence was insufficient to

corroborate the accomplice witness testimony of Kristina.


       A factfinder should exercise caution when considering the testimony of an

accomplice because accomplices often have incentives to lie, such as to avoid

punishment or shift blame to another person. Smith v. State, 332 S.W.3d 425, 439

(Tex.Crim.App. 2011). To account for such incentives, a conviction cannot be based on

the testimony of an accomplice unless that testimony is corroborated by other evidence

tending to connect the defendant with the offense committed. See TEX. CODE CRIM.

PROC. ANN. art. 38.14 (West 2005). Because Kristina was indicted for the same offense

as appellant, she is an accomplice witness as a matter of law. See Smith, 332 S.W.3d


       3
         From evidence regarding the domineering way in which appellant interacted
with Kristina’s children and the fear in which they were held, it is reasonable to infer that
Kati would try to comply with appellant’s demand that she accompany him to his vehicle
without exhibiting the pain that she was in.
                                             7
at 439. In conducting a sufficiency review under the accomplice witness rule, the court

eliminates the accomplice testimony from consideration and examines the record to see

if any evidence tends to connect the defendant to the commission of the offense.

Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001). While a defendant’s

mere presence before, during, or after an offense is, by itself, insufficient to corroborate

an accomplice witness’s testimony, evidence of such presence coupled with other

suspicious circumstances can be enough to tend to connect the accused to the offense.

Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.Crim.App. 1996).


       In the present case, the evidence clearly establishes that appellant was present

before, during, and after the assault that caused Kati’s death.          While appellant’s

presence during the crime alone is not sufficient corroboration of Kristina’s testimony,

there was sufficient evidence of other suspicious circumstances that would have

allowed the jury to conclude that appellant was connected to the offense.            At the

emergency room, hospital personnel testified that appellant did not act in a manner

consistent with concern for Kati or grief for her death.      In fact, the only emotional

reaction exhibited by appellant was anger when the decision to cease life-saving efforts

was made.     The jury also heard evidence that appellant seemed more focused on

concealing J.W.’s injuries than he was on monitoring Kati’s condition. Additionally, the

jury heard evidence that Kristina, Kati, and J.W. were covered in bruises, yet appellant

had no visible injuries.4 In addition, the jury heard evidence that, after Kati’s death,



       4
        While appellant argues that the injuries sustained by Kristina are indicative that
she was the one that assaulted Kati, it is not reasonable to conclude that the five-and-a-
half-year-old Kati was capable of inflicting the extensive bruising that was discovered on
                                             8
appellant described Kati as stubborn, jealous, and a glutton. Appellant’s attitude toward

Kati, after her death, was described to the jury as cold. Witnesses also testified that

they felt as if appellant blamed Kati for her death by connecting it to Kati having urinated

in appellant’s car.   The jury also heard testimony regarding statements made by

appellant that he would not tell the truth about the events of July 4, 2009, and that he

knew what needs to be said in order for the “truth” to set everyone free. As will be

discussed in more detail below, the jury also heard the testimony of Shyla Goodrum

detailing appellant’s similar pattern of abuse toward her and, eventually, her child in a

prior romantic relationship between Goodrum and appellant.            Finally, the medical

examiner’s testimony about the manner and means of Kati’s death are consistent with

Kristina’s testimony detailing appellant’s assault on Kati.


       Considering all of the nonaccomplice evidence in a manner affording appropriate

deference to the jury’s role as factfinder, we conclude that this evidence is sufficient to

tend to connect appellant to the crime of the felony murder of Kati.         As such, this

evidence provides sufficient corroboration of Kristina’s accomplice witness testimony

and, therefore, we overrule appellant’s second issue.


              Issue Three – Admissibility of Extraneous Offense Testimony


       By his third issue, appellant contends that the trial court abused its discretion in

admitting evidence of extraneous offenses committed by appellant.              Specifically,

appellant contends that the testimony of appellant’s former girlfriend, Shyla Goodrum,



Kristina’s body. However, the lack of any visible injuries on appellant allows for a
reasonable inference that he was the assailant of Kristina, Kati, and J.W.
                                             9
was character evidence that the trial court admitted in violation of Texas Rules of

Evidence 403 and 404(b). See TEX. R. EVID. 403, 404(b).5


       As appellant=s issue challenges the trial court=s admission of evidence, we review

the decision under the abuse of discretion standard.         See Billodeau v. State, 277

S.W.3d 34, 39 (Tex.Crim.App. 2009). The test for abuse of discretion is whether the

trial court acted without reference to any guiding rules and principles. Montgomery v.

State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990).          A reviewing court applying the

abuse of discretion standard should not reverse a trial judge=s decision whose ruling

was within the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102

(Tex.Crim.App. 1996).


       Evidence of extraneous acts of misconduct may be admissible if the uncharged

act is relevant to a material issue in the case, and the probative value of the evidence is

not significantly outweighed by its prejudicial effect. Segundo v. State, 270 S.W.3d 79,

87 (Tex.Crim.App. 2008). Rule 404(b) provides that “[e]vidence of other crimes, wrongs

or acts is not admissible to prove the character of a person in order to show action in

conformity therewith.”      Evidence of extraneous misconduct may be admissible,

however, when such evidence is relevant to a non-character-conformity fact of

consequence in a case, such as establishing motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. Rule 404(b); Berry v.

State, 233 S.W.3d 847, 858 (Tex.Crim.App. 2007); see Robbins v. State, 88 S.W.3d

256, 259 (Tex.Crim.App. 2002). Evidence admissible under Rule 404(b), however, may


       5
           Further reference to Texas Rules of Evidence will be by reference to “Rule __.”
                                             10
be inadmissible under Rule 403 if the probative value of such evidence is substantially

outweighed by unfair prejudice.     Prince v. State, 192 S.W.3d 49, 56 (Tex.App.—

Houston [14th Dist.] 2006, pet. ref’d). In conducting a Rule 403 analysis, the following

factors should be taken into consideration: (1) the inherent probative force of the

proffered evidence; (2) the proponent’s need for that evidence; (3) any tendency of the

evidence to suggest decision on an improper basis; (4) any tendency of the evidence to

confuse or distract the jury from the main issues; (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the probative force

of the evidence; and (6) the likelihood that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v.

State, 210 S.W.3d 637, 641–42 (Tex.Crim.App. 2006).


      In the present case, appellant objected to Goodrum’s testimony in a hearing held

outside the presence of the jury. After hearing argument regarding the testimony, the

trial court overruled appellant’s objections on the bases that (1) the door was opened by

appellant’s opening argument and by his cross-examination of State’s witnesses; (2) the

evidence served non-character-conformity purposes, such as to prove motive,

opportunity, intent, plan, knowledge, identity, and absence of mistake or accident; and

(3) the evidence was so similar to the present case as to constitute a signature of the

alleged crime. Appellant obtained running objections to Goodrum’s testimony under

Rules 403 and 404(b), and the jury was given a limiting instruction regarding the

appropriate consideration of Goodrum’s testimony.




                                           11
       Looking first to appellant’s Rule 404(b) objection, the record clearly reflects that

the identity of the perpetrator of the assault on Kati was in issue throughout the trial.

Extraneous offense evidence may be admitted to prove identity. Segundo, 270 S.W.3d

at 88. One manner in which identity can be proven by admission of extraneous offense

evidence is by showing the defendant’s modus operandi, that is, that the pattern and

characteristics of the charged crime and the uncharged misconduct are so distinctively

similar that they constitute the defendant’s “signature.” Id.


       Goodrum’s testimony regarding appellant’s misconduct during their romantic

relationship is distinctively similar to Kristina’s testimony of appellant’s assaultive

actions toward her and her children.        The distinctive similarities between the two

relationships include the fact that appellant’s abuse of each woman began due to

appellant’s accusations that the women looked at other men; appellant would booby

trap the door to their apartment to monitor whether the women had opened the door

while he was away; appellant would check the genitals of the women to determine

whether they had sexual relations with someone else; appellant started assaulting the

women’s children when the women stopped crying during his assaults; when assaulting

the children, appellant would use a wooden board; appellant’s abuse of the children

included stepping on and standing on the children; and one thing that would cause

appellant to assault the children was his suspicion that the child was lying. The overall

pattern of abuse described by Goodrum is significantly similar to the pattern of abuse

described by Kristina. Furthermore, Goodrum’s description of appellant’s abuse of her

son is strikingly similar to Kristina’s description of appellant’s deadly assault of Kati.

Thus, Goodrum’s testimony of extraneous misconduct by appellant established a
                                             12
signature and was relevant to establish that it was appellant, rather than Kristina, that

assaulted Kati on July 4, 2009. As such, we conclude that the trial court did not abuse

its discretion in overruling appellant’s Rule 404(b) objection to Goodrum’s testimony.


       Turning now to appellant’s Rule 403 objection, we must address the factors

identified in Gigliobianco.   The inherent probative force of Goodrum’s testimony is

substantial. Because appellant’s defensive theory was that it was Kristina that caused

Kati’s death, Goodrum’s testimony regarding appellant’s distinctively similar pattern of

assaultive behavior and manner of abuse toward her child strongly serve to make it

more probable that it was appellant that assaulted Kati leading to her death.         See

Gigliobianco, 210 S.W.3d at 641. The State’s need for Goodrum’s testimony was high

due to the fact that the only two people that could testify regarding the events of July 4,

2009, presented completely contradictory accounts of those events. The State was

required to prove that it was appellant that caused the death of Kati, and appellant

placed identity in issue throughout the trial. As such, Goodrum’s testimony regarding

appellant’s prior misconduct, especially as it relates to his assaultive behavior toward

her son, is strong evidence that appellant was the perpetrator of the offense for which

he was charged. See Siqueiros v. State, 685 S.W.2d 68, 72 (Tex.Crim.App. 1985) (en

banc) (discussing the admissibility of extraneous misconduct evidence when defendant

puts identity in issue). As for the tendencies of the evidence to suggest a decision on

an improper basis or to distract or confuse the jury, we acknowledge that Goodrum’s

testimony that appellant had previously committed brutal assaults against both her and

her child might arouse the hostility of the jury. However, the trial court instructed the

jury regarding the appropriate use of the testimony, and the nature of appellant’s assault
                                            13
on Goodrum’s child, which did not cause his death or apparently any serious or

permanent injury, was less emotional than the testimony regarding the nature of

appellant’s assault on Kati. See Blackwell v. State, 193 S.W.3d 1, 15 (Tex.App.—

Houston [1st Dist.] 2006, pet. ref’d) (“[A] trial court’s instructions to the jury are a factor to

consider in determining whether the jury considered the extraneous-offense evidence

improperly….”).     Finally, it is clear that Goodrum’s testimony took a relatively small

amount of time, and did not repeat any evidence that had already been admitted.


         Considering each of the Gigliobianco factors together, we conclude that the

probative value of Goodrum’s testimony was not substantially outweighed by the danger

of unfair prejudice. As such, the trial court did not abuse its discretion in admitting

Goodrum’s testimony over appellant’s Rule 403 objection.


         Concluding that the trial court did not abuse its discretion in overruling appellant’s

Rule 403 or 404(b) objections to Goodrum’s testimony, we overrule appellant’s third

issue.


                                          Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.



                                                            Mackey K. Hancock
                                                                 Justice



Do not publish.

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