Elsie Castillo Moreno v. State of Texas--Appeal from 38th Judicial District Court of Uvalde County

Appellant

v.

STATE of Texas,

Appellee

From the 38th Judicial District Court, Uvalde, Texas

Trial Court No. 2000-01-9868-CR

Honorable Rey Perez, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: June 13, 2001

AFFIRMED

Elsie Castillo Moreno was convicted of murdering her daughter and sentenced to ninety-nine years imprisonment. Moreno appeals, claiming the trial court erred by limiting her voir dire, excluding expert evidence during the guilt-innocence phase, admitting her video statement, and denying her motion for mistrial. We affirm the conviction.

Background

Moreno struck her daughter, Christi, on the head with a hammer. According to Moreno, Monica Cruz, Moreno's cousin, told Moreno to hit Christi as punishment for drinking Cruz's Kool-Aid. Moreno says she hit Christi under duress, fearing Cruz would do more harm if Moreno disobeyed. Christi died later the same day. After Christi was discovered dead, Moreno and her other daughter, Sandra, washed Christi's body, changed her clothing, and dumped her body on the outskirts of San Antonio. No one reported the incident to police, but rather, the day after dumping Christi's body, Moreno reported Christi had run away with her boyfriend.

Although Christi's body was discovered ten days later by police, it was not identified for two years because it was so badly decomposed. In May 1997, the State indicted Moreno and Cruz for Christi's murder. The State later dismissed the indictment against Cruz. In a written statement, Moreno admitted hitting Christi at Cruz's command and dumping her body. Moreno also gave police a video statement regarding how and where Christi's body was dumped. A jury convicted Moreno of murder, sentencing her to ninety-nine years imprisonment.

Voir Dire

In her first point of error, Moreno claims the trial court improperly limited the scope of her voir dire. Conducting voir dire rests within the sound discretion of the trial court, and only an abuse of discretion will warrant reversal. Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996). Although a trial court has the right to impose reasonable limitations on voir dire, refusing to allow a defendant to ask a proper question constitutes an abuse of discretion. Id.; see Woolridge v. State, 827 S.W.2d 900, 904 (Tex. Crim. App. 1992). Hypothetical questions are permitted to ascertain the views of prospective jurors and help explain the law, but questions may not be asked to commit venire persons to a position based on a set of circumstances analogous to the case in question. Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997); Dinkins v. State, 894 S.W.2d 330, 345 (Tex. Crim. App. 1995). If the trial court prevents the asking of a proper question, we conduct a harmless error review. (1)

In this case, the trial court refused to allow Moreno to question the panel on the failure to report a crime or covering up a crime. The trial court sustained the State's objection that Moreno's hypothetical about witnessing a crime at a local gas station was an attempt to commit the panel to a specific set of facts. Looking to the totality of the voir dire, the trial court allowed Moreno wide latitude to discuss the relevant issues of the case. Wheatfall v. State, 882 S.W.2d 829, 833 (Tex. Crim. App. 1994). Affording proper discretion to the trial court, we overrule Moreno's first point of error.

Psychiatric Evidence

In her second point of error, Moreno argues the trial court erred in excluding her psychiatric report from the guilt-innocence phase. The trial court granted the State's motion in limine, prohibiting Moreno from mentioning or introducing psychiatric evidence before approaching the bench. Moreno's response to the motion indicated her intent to introduce the testimony and report of a forensic expert during the guilt-innocence phase to disprove intent and prove her defenses. Although Moreno unsuccessfully attempted to introduce the expert report during the punishment phase, she never offered the expert's report or testimony during the guilt-innocence phase. As a result, Moreno waived any complaint on appeal regarding the evidence's exclusion during the guilt-innocence phase. McDuff v. State, 939 S.W.2d 607, 618 (Tex. Crim. App. 1997) (holding the granting of a motion in limine insufficient to preserve error for review of exclusion of evidence). We overrule Moreno's second point of error.

Moreno's Video Statement

In her third point of error, Moreno claims the trial court erred in denying her motion to suppress her video statement. We conduct a bifurcated review of suppression rulings, giving almost total deference to the trial court's findings, but conducting a de novo review of the court's application of law to those facts. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (citing Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000) and Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). We afford such deference to the findings of fact because the trial court is the exclusive judge of credibility, and the judge may believe or disbelieve any part of a witness's testimony even if the testimony is uncontroverted. Id. at 855; Castro v. State, 914 S.W.2d 159, 162 (Tex. App.- San Antonio 1995, pet. ref'd). Regarding the suppression of a statement, to seek the Fifth Amendment's protection, a person in police custody must unambiguously and unequivocally invoke the right to counsel. (2)

In this case, Moreno was read her rights before giving the video statement. Although she asked to call her husband because "he might be getting her an attorney," she never asked for an attorney. When Moreno asked to call her husband, she was allowed to do so. After Moreno's husband could not be reached, she was again advised of her rights, including her right to an attorney, before she gave the statement. We decline to hold that Moreno's request to call her husband constitutes an unambiguous and unequivocal invocation of her right to counsel. Davis, 512 U.S. at 461. Affording the trial court proper deference, we overrule Moreno's third point of error.

Motion for Mistrial

In her fourth point of error, Moreno argues the trial court erred in denying her motion for mistrial, which was made after Moreno observed a staff member of the prosecutor's office talking with a juror during a recess. We review the trial court's denial of a mistrial for juror misconduct under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070 (2000). The Texas Code of Criminal Procedure prohibits jurors from talking to anyone about the trial outside the court's presence. Tex. Code Crim. Proc.Ann. art. 36.22 (Vernon 1997); see Tex. R. Civ. P. 284. A juror conversing with unauthorized persons about a case creates a rebuttable presumption that prejudice has occurred. Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997). Although reviewing courts must recognize the presumption of prejudice, they must also defer to trial court determinations of facts and witness credibility. Id. In this case, the trial court conducted a hearing, considered the testimony of the State staff member, the juror, and the bailiff. The comments between the staff member and juror concerned a local softball league, not the case. The record reflects no evidence demonstrating the trial court abused its discretion in denying Moreno's motion for mistrial. See id. at 397-99 (affirming a denial of a motion for mistrial in case where a juror discussed the case with an outsider). We overrule Moreno's fourth point of error.

Conclusion

Overruling all of Moreno's points of error, we affirm the conviction.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH

1. Tex. R. App. P. 44.2(a); Gonzales v. State, 994 S.W.2d 170, 171 (Tex. Crim. App. 1999); McGee v. State, 35 S.W.3d 294, 298 (Tex. App.-Texarkana 2001, pet. ref'd). In this review, we ask whether we can conclude beyond a reasonable doubt that denying Moreno the right to ask the proper question during voir dire did not contribute to the conviction. Gonzales v. State, 2 S.W.3d 600, 604 (Tex. App.-Texarkana 1999, pet. ref'd).

2. Davis v. United States, 512 U.S. 452, 458- 61 (1994). In Davis, the Supreme Court held the statement, "maybe I should talk to a lawyer," did not unambiguously and unequivocally invoke the right to counsel. Id.; Flores v. State, 30 S.W.3d 29, 33 (Tex. App.-San Antonio 2000, pet. ref'd). But see Jones v. State, 742 S.W.2d 398, 405-06 (Tex. Crim. App. 1987) (holding that statement, "I think I want a lawyer," did invoke right to counsel).