David Castillo v. State of Texas

11th Court of Appeals Eastland, Texas Opinion David Castillo Appellant Vs. No. 11-01-00214-CR -- Appeal from Knox County State of Texas Appellee The trial court convicted David Castillo of engaging in organized criminal activity by conspiring to deliver more than 4 grams but less than 200 grams of cocaine. TEX. PENAL CODE ANN. ' 71.02 (Vernon Supp. 2002). The trial court assessed punishment at confinement for 20 years. We affirm.[1] Appellant has briefed three points of error. In the first point, he challenges the sufficiency of the evidence by contending that the accomplice witnesses= testimony was not corroborated by evidence tending to connect appellant to the offense. In his second point, appellant contends that the evidence is legally insufficient because a fatal variance exists between the allegations charged in the indictment and the evidence proved at trial. In his final point, appellant argues that the trial court erred in denying his motion for new trial, which was based upon the State=s failure to produce exculpatory evidence. In order to support a conviction based upon the testimony of an accomplice, there must be corroborating evidence that tends to connect the accused with the offense. TEX. CODE CRIM. PRO. ANN. art. 38.14 (Vernon 1979); Reed v. State, 744 S.W.2d 112 (Tex.Cr.App.1988). To determine the sufficiency of the corroboration, we must examine the testimony of the non‑accomplice witnesses and determine if there is inculpatory evidence "tending to connect" appellant to the crime. Reed v. State, supra at 127. An accomplice witness need not be corroborated in all his testimony, and the corroboration need not directly link the accused to the crime or be sufficient in itself to establish guilt. Reed v. State, supra. The record in this case shows that two non-accomplice witnesses testified regarding an undercover sting operation in which several small purchases of cocaine were made in 1999 in Knox County. During this time period, an undercover confidential informant bought cocaine from some of appellant=s codefendants: Mary Alice Masias, Alfred Masias, Jr. (a/k/a Junior Masias) and Dennis Masias. After conducting the sting operation, the police determined that the local dealer=s supply of cocaine came from Austin from appellant, Frank Masias, Jr., and Johnny Masias. The testimony of Alfred, Dennis, Mary, Christy Masias Gallegos, and Natalie Michelle Dempsey supported the conclusion that Alfred=s and Dennis=s supply of cocaine came, in part, from appellant. Alfred, Dennis, Mary, and Christy were all accomplices as a matter of law. The issue is whether Natalie was an accomplice witness. The record shows that Natalie made two trips to Austin during which cocaine was purchased from appellant and/or Frank. On the first trip, Alfred, Dennis, and Daniella Martinez picked Natalie up at her mother=s house in Gatesville. From there, they went to Austin and spent the night. Natalie testified that, at first, she did not know the purpose of the trip to Austin, although she figured it out while in Austin. She did not actually witness the transfer of cocaine on this occasion because she and Daniella had been instructed to go to another room. The next day, they left Austin and drove to Knox County, but Natalie did not know where in the vehicle the cocaine was located. Natalie did not assist in purchasing, hiding, or selling the cocaine. The next month, Natalie accompanied Alfred on another trip to Austin. This time, she knew the purpose of the trip and also witnessed the transaction. Again, she did not conspire or assist in purchasing, hiding, or selling the cocaine. However, on this trip, she knew where the cocaine was located in the vehicle and had been instructed by Alfred to hide it in her bra if they were stopped by police. In answer to defense counsel=s question as to whether she was helping Alfred, Natalie replied, AWell, I guess.@ According to Natalie, they were not stopped; and she did not put the cocaine in her bra or actually do any act to help Alfred. No criminal charges were filed against Natalie. An accomplice witness is one who participates with the accused before, during, or after the commission of the crime. McFarland v. State, 928 S.W.2d 482, 514 (Tex.Cr.App.1996), cert. den=d, 519 U.S. 1119 (1997); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Cr.App.1986), cert. den=d, 492 U.S. 925 (1989). The participation must involve an affirmative act committed by the witness to promote the commission of the offense. McFarland v. State, supra; Kunkle v. State, supra at 441. The mere knowledge of the offense, the failure to disclose the offense, or even the concealing of the offense does not make a witness an accomplice. In order to be an accomplice as a matter of law, the witness must be susceptible to prosecution for the offense with which the accused is charged. McFarland v. State, supra; Kunkle v. State, supra at 439. Since the evidence does not show that she performed an affirmative act promoting the offense, Natalie was not an accomplice as a matter of law. Consequently, her status was an issue for the trial court, as the trier of fact, to determine. Dawson v. State, 472 S.W.2d 775, 776 (Tex.Cr.App.1971). The trial court apparently concluded that Natalie was not an accomplice. Because there is evidence to support this conclusion, we will not disturb the trial court=s decision. See Dawson v. State, supra. Now that we have determined Natalie=s status, we will address the sufficiency of the corroborating evidence. The accomplice testimony indicates that Alfred and others made several trips to Austin in 1999 to buy cocaine for the Masias family to sell in Knox County. During each trip, two to three ounces of cocaine were purchased from appellant and/or Frank. An ounce of cocaine equals 28 grams. The accomplices indicated that appellant knew that the cocaine was to be resold in the Knox County area. Alfred testified regarding various trips to Austin in which he purchased cocaine from appellant. On one occasion, Christy was with him and witnessed the transfer of cocaine from appellant to Alfred at appellant=s duplex. Christy and Alfred testified regarding the transaction and the fact that Alfred and appellant had called each other on their cell phones. The State introduced cell phone records showing that, on the date in question, Alfred had called appellant and that, later on the same day, appellant had called Alfred. We hold that the non-accomplice testimony sufficiently corroborated that of the accomplices. Natalie testified that, although she did not witness the actual transfer of cocaine during her first trip to Austin, she thought that the cocaine was purchased from appellant and Frank. Natalie identified both appellant and Frank in court. During the second trip to Austin, she witnessed the transaction and actually saw appellant transfer the cocaine to Alfred. Natalie=s testimony connects appellant to the offense. Furthermore, the various business records also tend to corroborate the accomplice testimony. In addition to the cell phone records, records from a Motel 6 were introduced. Alfred, Dennis, and Natalie testified that Alfred had rented two rooms at a Motel 6 and that a drug transaction occurred in one of those rooms. Business records from the Motel 6 showed that Alfred had, in fact, rented two rooms on the date that Natalie made her first trip to Austin. Because we find that the non-accomplice evidence tends to connect appellant with the offense, we overrule the first point of error. In the second point, appellant contends that the evidence is legally insufficient because there is a fatal variance between the indictment and the State=s proof at trial. This argument is based upon the indictment=s inclusion of Lee Edward Shields and Cindy Masias as members of the combination that committed the offense. The State offered no evidence at trial indicating that these two persons participated in the combination. However, the State offered evidence showing that the other seven named defendants participated in the combination. In Gollihar v. State, 46 S.W.3d 243 (Tex.Cr.App.2001), the Texas Court of Criminal Appeals reaffirmed the fatal variance doctrine and adopted the following materiality test to determine whether a variance is fatal: A variance between the wording of an indictment and the evidence presented at trial is fatal only if "it is material and prejudices [the defendant's] substantial rights." When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar v. State, supra at 257, (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). In this case, although there was a variance between the indictment and the proof at trial, the variance was not fatal because it did not meet the materiality test. See Fuller v. State, 73 S.W.3d 250 (Tex.Cr.App.2002); Gollihar v. State, supra. The indictment was sufficient to inform appellant of the offense and to avoid the risk of double jeopardy. The second point of error is overruled. In his final point, appellant contends that the trial court erred in denying his motion for new trial. In the motion, appellant complained of the State=s failure to produce exculpatory evidence -- the existence of plea agreements between the State and the State=s witnesses who were co-defendants. The State had an affirmative duty to disclose this type of impeachment evidence. United States v. Bagley, 473 U.S. 667, 676-77 (1985); Etheridge v. State, 903 S.W.2d 1, 20 (Tex.Cr.App.1994), cert. den=d, 516 U.S. 920 (1995). The State=s failure to disclose such evidence constitutes a constitutional violation only if it undermines the confidence in the outcome of the trial such that there is a reasonable probability that the result of the proceeding would have been different. United States v. Bagley, supra at 682; Etheridge v. State, supra. Alfred, Dennis, Christy, and Mary all testified on direct examination that they had negotiated some sort of plea agreement with the district attorney in exchange for their testimony at appellant=s trial. One month before trial, the State notified appellant that it would call each of these witnesses to testify at trial. As in Etheridge, the existence of the impeaching evidence was made known to appellant during trial and was available for use to impeach the witnesses at trial. We hold that the confidence in the outcome of appellant=s trial was not undermined. Consequently, the trial court did not abuse its discretion in denying appellant=s motion for new trial. The third point of error is overruled. The judgment of the trial court is affirmed. W. G. ARNOT, III CHIEF JUSTICE August 29, 2002 Do not publish. See TEX.R.APP.P. 47.3(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]On this same date in a companion case, we also affirmed the conviction of Frank Masias, Jr., one of appellant=s co-defendants. See Masias v. State, No. 11-01-00207-CR (Tex.App. - Eastland, August 29, 2002, no pet=n h.)(not designated for publication).