Agapito Castellano v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 24, 2024
• Docket: 13-23-00347-CR
• Status: Published

Opinion

NUMBER 13-23-00347-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

AGAPITO CASTELLANO, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 156TH DISTRICT COURT OF BEE COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Silva

Appellant Agapito Castellano was indicted on charges of murder, a first-degree

felony (Count I), and unlawful possession of a firearm by a felon, a third-degree felony

(Count II). See TEX. PENAL CODE ANN. §§ 19.01, 46.04. A jury returned a guilty verdict on

the lesser-included offense of manslaughter, a second-degree felony, and unlawful possession of a firearm by a felon. See id. §§ 19.04, 46.04. The State alleged that each

conviction should be enhanced for punishment purposes, and appellant entered a plea of

true to two prior felony convictions: unlawful possession of a firearm by a felon, and

forging a government instrument. See id. §§ 12.42(d), 32.21, 46.04. Appellant was

sentenced by the trial court to sixty-five years’ and thirty years’ incarceration for Counts I

and II, respectively.

Appellant argues two issues on appeal: (1) the evidence is legally insufficient to

establish the identity element of his manslaughter conviction; and (2) the trial court

entered a void sentence outside the statutory punishment range. We affirm as modified.

I. BACKGROUND

On September 21, 2022, Beeville Police Department (BPD) officers responded to

a call that a male with injuries was being transported to Christus Spohn Hospital. When

police arrived at the hospital, they identified the injured male as Rocky Vela. BPD Officer

Thomas Dozier observed that Vela suffered a gunshot wound to his abdomen. Vela

succumbed to his injuries in the hospital on September 28, 2022. An autopsy revealed

that the gunshot wound was the cause of death.

At trial, Vela’s ex-girlfriend, Yolanda Mendez, testified that Vela was at her home

the morning he was shot. Mendez further testified that she was arguing with Vela outside

the home when she heard a loud bang, but she did not see anyone with a gun. Mendez

stated that four others were also present at the time of the shooting.

Morales testified that he was a close friend of Vela and that he and a man named

“D-Town” were present when Vela was shot. Morales identified appellant in court as “D-

Town.” Morales recounted that he came outside after hearing Vela and Mendez arguing,

2 saw Vela push Mendez, and then witnessed appellant shoot Vela immediately thereafter.

Morales also stated that he saw at least one bullet hit Vela and the additional bullets go

into Mendez’s home. Morales further testified that appellant had previously showed him

a gun inside Mendez’s home and indicated to Morales that if Vela went to Mendez’s home

and “disrespected anybody or anyone, [appellant] was going to shoot him.”

Appellant was arrested in Dallas County and BPD Sergeants Joshua Meakins and

Jonell Cisneros transported him to Bee County. During the transport, appellant

questioned how officers could “charge” him if they “did not locate a gun.” Officers were

unable to locate the firearm used to shoot Vela but they found three .380 caliber shell

casings and a bullet lodged in the wall paneling of Mendez’s home. The State’s firearm

examiner testified that those shell casings were fired from the same firearm that shot Vela.

The State indicted appellant on charges of murder and unlawful possession of a

firearm by a felon on December 14, 2022, and filed a notice of intent to enhance

punishment on June 22, 2023. The notice alleged that appellant was twice previously

convicted of felonies and that appellant was therefore a habitual felony offender (HFO).

The jury returned guilty verdicts on the lesser-included offense of manslaughter and

unlawful possession of a firearm by a felon. Appellant elected to have the trial court

assess his punishment and he pleaded true to the State’s enhancement allegations

before the court. Appellant was sentenced to sixty-five years’ imprisonment on Count I

and thirty years’ imprisonment on Count II, with the sentences to run concurrently. This

appeal followed.

3 II. LEGAL SUFFICIENCY

By appellant’s first issue, he argues that the evidence was legally insufficient to

support the jury’s finding of guilt on the manslaughter charge.

A. Standard of Review and Applicable Law

“To satisfy constitutional due process requirements, a criminal conviction must be

supported by sufficient evidence.” Perez v. State, 689 S.W.3d 369, 377 (Tex. App.—

Corpus Christi–Edinburg 2024, no pet.) (quoting Laster v. State, 275 S.W.3d 512, 517

(Tex. Crim. App. 2009)). In assessing the legal sufficiency of the evidence to support a

criminal conviction, we consider “all the evidence in the light most favorable to the verdict

and determine whether, based on that evidence and reasonable inferences therefrom, a

rational juror could have found the essential elements of the crime beyond a reasonable

doubt.” Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App. 2021); see Jackson v.

Virginia, 443 U.S. 307, 318 (1979). Therefore, in analyzing legal sufficiency, we defer to

the jury’s credibility and weight determinations because the jury is the “sole judge” of

witnesses’ credibility and the weight to be given testimony. Martin v. State, 635 S.W.3d

672, 679 (Tex. Crim. App. 2021) (citing Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim.

App. 2012)); see Jackson, 443 U.S. at 319.

We measure legal sufficiency by the elements of the offense as defined by the

hypothetically correct jury charge. Baltimore, 689 S.W.3d at 341; Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a charge [is] one that accurately sets out

the law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and adequately

4 describes the particular offense for which the defendant was tried.” Malik, 953 S.W.2d at

240.

To sustain a conviction of manslaughter, the evidence must show that: (1) a

person; (2) recklessly; (3) caused the death of an individual. TEX. PENAL CODE ANN.

§ 19.04; Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013). “Identification of

the defendant as the person who committed the offense charged is part of the State’s

burden of proof beyond a reasonable doubt.” Wiggins v. State, 255 S.W.3d 766, 771 (Tex.

App.—Texarkana 2008, no pet.) (citing Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim.

App. 1984)). Therefore, the burden in this case was on the State to show that appellant

was the person who recklessly caused the death of the victim.

Identity of the perpetrator may be proven by direct or circumstantial evidence.

Ingerson v. State, 559 S.W.3d 501, 509 (Tex. Crim. App. 2018); Wiggins, 255 S.W.3d at

771. “Direct evidence and circumstantial evidence are equally probative, and

circumstantial evidence alone may be sufficient to uphold a conviction so long as the

cumulative force of all the incriminating circumstances is sufficient to support the

conviction.” Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214

S.W.3d at 13. “The sufficiency of the evidence is then determined from the cumulative

effect of all the evidence; each fact in isolation need not establish the guilt of the accused.”

Wiggins, 255 S.W.3d at 771.

B. Discussion

Appellant argues that the evidence is legally insufficient to prove that he was the

person who committed the offense because there exists reasonable doubt as to his

5 identity as the shooter. Appellant contends that the only evidence linking appellant to the

offense was Morales’s eyewitness testimony and that his testimony lacked credibility.

However, “[a]s a reviewing court, we may not reevaluate the weight and credibility

of the evidence in the record and thereby substitute our own judgment for that of the

factfinder.” See Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). Morales

witnessed the shooting and identified appellant as the shooter in court. Accordingly, this

evidence alone, viewed in a light most favorable to the verdict, was sufficient to support

a rational jury’s finding beyond a reasonable doubt that appellant was the shooter. See

Hammack, 622 S.W.3d at 914; Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App.

2004) (holding that evidence was legally sufficient to support a rational jury’s finding that

appellant was the individual who shot the complainant where he was identified by

eyewitnesses); see also Payton v. State, No. 14-20-00175-CR, 2021 WL 4472522, at *4

(Tex. App.—Houston [14th Dist.] Sept. 30, 2021, no pet.) (mem. op., not designated for

publication) (concluding same where shell casings at the scene were fired from the same

weapon appellant was known to carry).

Nevertheless, appellant argues that Morales’s testimony was not credible because

his testimony was self-serving, and Morales was reluctant to testify. These contentions

attack the credibility of the witnesses’ testimony, not its sufficiency. “[T]he jury is the sole

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

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); Ghanem v. State, 689 S.W.3d 354,

367 (Tex. App.—Corpus Christi–Edinburg 2024, pet. ref’d). Thus, the jury could have

rationally chosen to believe Morales’s testimony regarding the identity of the shooter. See

Henderson, 582 S.W.3d at 355.

6 Accordingly, we hold that there was legally sufficient evidence to support

appellant’s conviction of manslaughter. We overrule appellant’s first issue.

III. VOID SENTENCE

By his second issue, appellant argues that the trial court entered a void sentence

on Count II because it was outside of the punishment range for the offense he was

convicted of.

A. Applicable Law

As a general rule, a sentence will not be disturbed on appeal if it is within its

statutory range of punishment. Jackson, 680 S.W.2d at 814. But “[a] sentence that is

outside the maximum or minimum range of punishment is unauthorized by law and

therefore illegal” and void. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003);

see also Gutierrez v. State, No. 13-22-00042-CR, 2023 WL 4662952, at *3 (Tex. App.—

Corpus Christi–Edinburg July 20, 2023, no pet.) (mem. op., not designated for

publication).

If it is shown on the trial of a felony offense other than a state jail felony that the

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

previous felony conviction is for an offense that occurred subsequent to the first previous

conviction having become final, a convicted defendant may be punished by imprisonment

in the Texas Department of Criminal Justice for life, or for any term of not more than

ninety-nine years’ or less than twenty-five years’. TEX. PENAL CODE ANN. § 12.42(d).

To establish a defendant’s conviction of a prior offense for sentencing

enhancement purposes, the State must prove beyond a reasonable doubt that (1) a prior

final conviction exists, and (2) the defendant is linked to that conviction. Flowers v. State,

7 220 S.W.3d 919, 921 (Tex. Crim. App. 2007); Rogers v. State, 599 S.W.3d 321, 322–23

(Tex. App.—Houston [14th Dist.] 2020, no pet.). Once a defendant pleads true to the

enhancement allegations, the State is relieved of its burden to prove the allegations

because a plea of “true” constitutes sufficient evidence to support the enhancement

allegation. Hopkins v. State, 487 S.W.3d 583, 586 (Tex. Crim. App. 2016); Wilson v. State,

671 S.W.2d 524, 526 (Tex. Crim. App. 1984) (holding that appellant’s judicial confession

was a sufficient basis for the trial court to find the enhancement paragraphs true).

Appellant contends that the trial court erred by entering an incorrect judgment of

conviction for Count II and in sentencing appellant outside the proper punishment range

for that conviction. However, appellant does not explain the alleged defects of the

indictment, offers no further explanation as to why his sentence was outside the proper

punishment range, 1 does not refer us to any cases applying the law to facts similar to the

instant case, and otherwise provides no pertinent legal authority related to the issue. 2 See

TEX. R. APP. P. 38.1(i) (stating that appellant’s brief must “contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the

record”); Lopez v. State, 672 S.W.3d 915 (Tex. App.—Corpus Christi–Edinburg 2023, pet.

ref’d) (finding that appellant’s issue was waived through failure to provide citations to the

record and to pertinent legal authority). “[A]n appellate court has no ‘obligation to

construct and compose [an] appellant’s issues, facts, and arguments with appropriate

1 Appellant cites only to two pages of the record in support of his contention: the verdict form for

Count I, and the court’s finding during the punishment phase for Count II. 2 In his brief, appellant points us to a line of cases that only discuss preservation of error and a

defendant’s general right to be sentenced within the proper range, but none are specifically pertinent to his issue on appeal.

8 citations to authorities and to the record.’” Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim.

App. 2017) (quoting Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008)).

Therefore, appellant has waived this issue through inadequate briefing. See TEX. R. APP.

P. 38.1(i).

Even if the issue had been preserved, however, the punishment assessed for

Count II by the trial court was within the proper punishment range and the sentence was

not void. Appellant was convicted of unlawful possession of a firearm by a felon, a third-

degree felony, and the trial court sentenced the appellant to thirty years’ imprisonment.

The punishment range for Count II was enhanced due to appellant’s status as an HFO,

which increased his punishment range to that of a first-degree felony offense. See TEX.

PENAL CODE ANN. § 12.42(d). The two prior convictions used for enhancement were

alleged in the State’s notice to enhance punishment for Count II: unlawful possession of

firearm by a felon and forgery of a government instrument. See id. §§ 32.21, 46.04.

Appellant pleaded true before the trial court. Accordingly, the trial court sentenced

appellant within the appropriate punishment range at life, or for any term of not more than

ninety-nine years’ or less than twenty-five years’ imprisonment. See id. § 12.42(d).

IV. MODIFICATION OF JUDGMENT

The trial court orally pronounced that appellant’s sentences for Counts I and II shall

run concurrently. However, the judgment of conviction states: “THIS SENTENCE SHALL

RUN: N/A.” This Court may modify a judgment when we have the necessary information

to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993); Simmons v. State, 672 S.W.3d 821, 829 (Tex. App.—Corpus Christi–Edinburg

2023, no pet.). Accordingly, we modify the judgment to provide that the sentences for

9 Counts I and II shall run concurrently. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.

Crim. App. 1998) (“[W]hen there is a variation between the oral pronouncement of [a]

sentence and the written memorialization of the sentence, the oral pronouncement

controls.”).

V. CONCLUSION

We affirm the trial court’s judgment as modified.

CLARISSA SILVA Justice

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

Delivered and filed on the 24th day of October, 2024.