

 




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
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
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
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.
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
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.
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,
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
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
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
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
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
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.  
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. 


 

1.   Appellant's mother gave Sergeant Hess a written statement where she mentioned that it may be
possible that appellant killed J.G.  
