Castaneda v. State

852 S.W.2d 291, 1993 WL 109326
CourtCourt of Appeals of Texas
DecidedApril 14, 1993
Docket04-92-00275-CR
StatusPublished
Cited by19 cases

This text of 852 S.W.2d 291 (Castaneda v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castaneda v. State, 852 S.W.2d 291, 1993 WL 109326 (Tex. Ct. App. 1993).

Opinions

OPINION

RICKHOFF, Justice.

Appellant, Jose “Pepe” Castaneda, was convicted by a jury of murder.1 Punishment, enhanced by previous convictions for attempted murder and burglary, was assessed by the court at life imprisonment. Appellant now appeals alleging two points of error.

We affirm.

The first point of error challenges the admission of appellant’s tape-recorded statement of the events leading to the death of Prisco Ramirez. Appellant argues that the State did not provide his counsel with a “true, complete, and accurate copy” of the recording no later than 20 days before trial in conformity with the Texas Code of criminal procedure. See Tex.Code Crim.Proc.Ann. art. 38.22 § 3(a)(5) (Vernon Supp.1993).

Prior to trial, appellant filed a discovery motion requesting “any and all recordings in the possession of the State.” The State opened its files to appellant for inspection on November 7, 1991, more than two months before trial. No recording or copy of appellant’s statement was in the file on that date; it did, however, contain a police report with a transcription of the recording.

At trial, a police officer testified that he obtained a tape-recorded statement concerning Ramirez’s death from appellant. When the State moved to admit the tape, the following ensued:

Mr. Sosa: (prosecutor) At this time, your Honor, I would move for for State’s Exhibit 16 to be admitted.
Mr. Montemayor: (appellant’s counsel) Your Honor, we’re going to object. The proper predicate has not been laid.
[293]*293The Court: Be more specific counsel.
Mr. Montemayor: The elements that must be met is, number one, recording is relevant. Number two, recording machine was testified before being used; it was in normal operating condition, recording machine was used and accurately recorded — what we’re going on is after the recording was made, the operator replayed the tape and the tape had accurately recorded the sounds and images. The tape was then labeled, sealed and placed in a secure storage vault to guard against tampering and later removed for trial still in the seal condition.

Thereafter, in a dialogue between the judge, the prosecutor and co-defendants’ counsel, the judge directs counsel to the notice provision of article 38.22 § 3(a)(5), which provides:

No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless ... not later than the 20th day before the date of the proceeding the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

Tex.Code Crim.Proc.Ann. art. 38.22 § 3(a)(5) (Vernon Supp.1993).

The prosecutor again sought to admit the tape. This followed:

The Court: You have no other objections?
Mr. Montemayor: No, sir.
The Court: Then what’s the exhibit number?
Mr. Sosa: Exhibit 16.
The Court: State’s Exhibit 16 is admitted. The objections are overruled. Before you do that let me just inquire; counsel you have had (sic) received the contents of this recording?

Subsequently, a hearing was held outside the presence of the jury to determine whether there had been compliance with article 38.22 § 3(a)(5). The court was advised that two months prior to trial, appellant’s counsel was shown the State’s entire file, including the transcription. Appellant did not claim that he had not seen the transcription; rather, he claimed not to have heard the recording. The court then called a recess and instructed counsel to compare the transcription with the recording before the jury returned.2 After recess, the following ensued:

The Court: Is there anything you need to take up outside the hearing of the jury before we bring the jury back?
Mr. Montemayor: No, Judge, just the objection as to the introduction of the tape.
The Court: What’s the objection?
Mr. Montemayor: According to 38.21—
The Court: 38.21?
Mr. Montemayor: 38.22. The State is supposed to provide us with a true, complete copy of all the recordings.

The court then overruled appellant’s objection and allowed the jury to hear the recording.

In order for an issue to be properly preserved for appellate review, there must be a timely objection specifically stating the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App.1990); Miranda v. State, 813 S.W.2d 724, 737 (Tex.App.—San Antonio 1991, writ ref’d). Furthermore, in order to preserve error on appeal by way of objection alone, the objection must come before the tangible evidence which is clearly objectionable is admitted. Sierra v. State, 482 S.W.2d 259, 262 (Tex.Crim.App.1972).

In the present case, appellant’s restated and correct objection to the admission of the recording on grounds the State did not comply with article 38.22 § 3(a)(5) did not come until after the exhibit was admitted. However, we conclude that the court’s reconsideration of the recording’s admissibility subsequent to admitting the tape allows us to consider whether the [294]*294court improperly overruled appellant’s restated objection.

Under article 38.22 § 3(a)(5), the State was required to provide a “true, complete, and accurate copy” of the oral statement to appellant no later than 20 drvs before trial. This requirement is to >e strictly construed. Tex.Code Crim.Proc. Ann. art. 38.22 § 3(e). Thus, we cannot say that the State complied with article 38.22 § 3(a)(5) by making a transcription of the recording available to appellant. Under these circumstances, we find the trial court erred by overruling appellant’s objection and admitting his tape-recorded statement.

We must next determine whether appellant was harmed by the error. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or punishment. Tex.R.App.P. 81(b)(2).

In making our determination, we note that appellant’s defense at trial relied upon the theories of self-defense and defense of third parties; in fact, appellant requested, and the court submitted, these two defensive issues in the charge. Moreover, appellant’s counsel argued in his closing, “... Pepe Castaneda has never denied firing the weapon ... He’s never denied it. But he is saying yes, I fired. That guy was hitting my brother. He started coming at me and my mother. What was I to do?”

At trial, appellant’s statement was the only direct evidence substantiating appellant's theories of self-defense and defense-of-a-third-party.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Smith v. State
522 S.W.3d 628 (Court of Appeals of Texas, 2017)
Kandance Yancy Marriott v. State
Court of Appeals of Texas, 2010
Ricky Morrison v. State
Court of Appeals of Texas, 2010
Erin Teague Wages v. State
Court of Appeals of Texas, 2008
Michaelwicz v. State
186 S.W.3d 601 (Court of Appeals of Texas, 2006)
Stephen Michaelwicz v. State
Court of Appeals of Texas, 2006
State v. Boado
55 S.W.3d 621 (Court of Criminal Appeals of Texas, 2001)
Israel Espinoza Martinez v. State
Court of Appeals of Texas, 1999
Calderon v. State
950 S.W.2d 121 (Court of Appeals of Texas, 1997)
Tigner v. State
928 S.W.2d 540 (Court of Criminal Appeals of Texas, 1996)
De La Paz v. State
901 S.W.2d 571 (Court of Appeals of Texas, 1995)
Ulloa v. State
901 S.W.2d 507 (Court of Appeals of Texas, 1995)
Castaneda v. State
852 S.W.2d 291 (Court of Appeals of Texas, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
852 S.W.2d 291, 1993 WL 109326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castaneda-v-state-texapp-1993.