Arnulfo Castillo-Sanchez v. State ( 2006 )

Affirmed and Memorandum Opinion filed November 16, 2006

Affirmed and Memorandum Opinion filed November 16, 2006.

In The

Fourteenth Court of Appeals

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NOS. 14-05-01225-CR, 14-05-01226-CR

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ARNULFO CASTILLO-SANCHEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause Nos. 1017631, 1038493

M E M O R A N D U M   O P I N I O N

Appellant, Arnulfo Castillo-Sanchez, appeals following his conviction on two counts of aggravated sexual assault of a child and sentence of forty years in prison.  In his first point of error, appellant claims that the trial court abused its discretion by excluding his own testimony.  In his second point of error, he argues that the trial court=s instructions on the lesser-included offense of indecency with a child violated his right to a unanimous verdict.  We affirm.  

I.  Background

In January of 2005, appellant was charged with aggravated sexual assault of a child based on allegations of sexual misconduct by the then eleven-year-old complainant, S.B., and a written statement offered to the police by appellant.  After the defense rested at trial without offering any evidence, the jury was given instructions regarding the sexual assault offense and also the lesser-included offense of indecency with a child.  The jury found appellant guilty of aggravated sexual assault and sentenced him to forty years in prison.

II.  Analysis

In his first point of error, appellant argues that the trial court abused its discretion by excluding his own testimony.  In order to preserve error on appeal, a party must specifically object and obtain a ruling from the trial court, or object to the trial court=s refusal to rule.  Tex. R. App. P. 33.1. Arguments on appeal must comport with the objection at trial or the error is waived.  Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). This is true even if the complaint is based upon constitutional grounds.  See Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) (overruling the appellant=s constitutional challenges to a jury charge instruction on the law of parties because those arguments had not been raised in the trial court);  Espinosa v. State, 29 S.W.3d 257, 260 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d) (finding that the appellant waived his constitutional challenge). 

In this case, appellant has waived any error with respect to the proposed testimony because he did not object at trial.  The portion of the record that appellant references indicates that appellant=s own trial attorney approached the judge with concerns that appellant intended to testify to matters that would harm his case.^[1] The trial judge apprised appellant of his right to testify, but warned appellant that if he did testify, those matters would not be allowed because of their lack of relevance.  Appellant then explicitly declined to testify. Nowhere in the record is there an objection to the exclusion of appellant=s testimony; rather, the only purpose of the conference between the judge and appellant was to make the latter aware of his rights and the Rules of Evidence=s limitations on those rights.  Consequently, the issue is waived.  See Tex. R. App. P. 33.1; Broxton, 909 S.W.2d at 918; Espinosa, 29 S.W.3d at 260.  We overrule appellant=s first point of error.

In his second point of error, appellant complains that the trial court=s jury instructions on the lesser-included offense of indecency with a child violated his constitutional right to a unanimous verdict, and as a result, was reversible error.  The relevant portion of the jury charge reads:

[I]f you find from the evidence beyond a reasonable doubt that on or about the 29th day of November, 2004, in Harris County, Texas, the defendant, Arnulfo Castillo-Sanchez , did then and there unlawfully, intentionally or knowingly engage in sexual contact with [S.B.], a child under the age of seventeen years and not the spouse of the defendant, by touching the genitals of [S.B.] with the intent to arouse or gratify the sexual desire of the defendant, or engaging [S.B.] to touch the genitals of the defendant with the intent to arouse or gratify the sexual desire of the defendant, then you will find the defendant guilty of indecency with a child.

Appellant contends that by instructing the jury that they could convict appellant for indecency with a child Aupon a finding that either he [appellant] had touched the complainant=s genitals or the complainant had touched the appellant=s genitals,@ the jury was led to believe it did not have to unanimously agree as to the act forming the basis of the crime.  For example, six jurors could decide that appellant touched S.B=s genitals while the other six jurors could decide that S.B. touched appellant=s genitals.  This, appellant argues, is reversible error because it allegedly violated his right to a unanimous verdict.

Appellant failed to object at trial to the jury charge. Therefore, we reverse only if appellant shows that he suffered actual, egregious harm.  Almanza v. State, 686  S.W.2d 157, 171 (Tex. Crim. App. 1984); see also Cartwright v. State, 833 S.W.2d 134, 136-137 (Tex. Crim. App. 1992) (explaining that Almanza redefined Afundamental error@ as Aegregious error that creates such harm as to deprive [an] accused of a fair and impartial trial.@ (quoting Ex Parte Maldonado, 688 S.W.2d 114, 116 (Tex. Crim. App.1985))).  For charge error to result in egregious harm, it must affect Athe very basis of the case,@ Adeprive the defendant of a valuable right,@ or Avitally affect a defensive theory.@  Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).

Appellant was not convicted of the lesser-included offense of indecency with a child.  The jury found him guilty of the greater offense of aggravated sexual assault.  In Clark v. State, 717 S.W.2d 910 (Tex. Crim. App. 1986), the defendant argued that the instructions on the lesser-included offense of murder were fundamentally defective in that they failed to require the jury to find a culpable mental state.  Id. at 917.  The Court of Criminal Appeals, keeping in line with prior holdings,^[2] held any error in the lesser-included offense instruction was not fundamentally defective in view of the fact that the jury convicted the defendant of the greater offense of capital murder.  Id. at 918.  In accordance with Clark, any error here in the lesser-included indecency with a child instruction must not be egregious because the jury convicted appellant of the greater offense of aggravated assault and thus, had no reason to consider the lesser-included offense instructions.  See Clark, 717 S.W.2d at 918 (AWhen the jury found that the appellant was guilty of criminal attempt to commit murder it had no occasion to deliberate whether the appellant was guilty of the lesser included offense [of aggravated assault].@ (quoting Thomas v. State, 587 S.W.2d 707 (Tex.Cr.App.1979))); see also Cartwright, 833 S.W.2d 134 (defining fundamental error as egregious error). Therefore, we hold that even if the charge was erroneous, the error does not rise to the level of egregious harm.  We overrule appellant=s second point of error.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed November 16, 2006.

Panel consists of Chief Justice Hedges and Justice Seymore and Senior Justice Mirabal.^[3]

Do Not Publish C Tex. R. App. P. 47.2(b).   

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^[1]  The judge alluded to the proposed testimony in stating: AYou listen.  You will not go into any testimony about your wife having sex with dogs in Las Vegas or kissing other women or any of this other stuff.  You understand?@

^[2]  The line of cases that Clark acknowledged in reaching its decision were:  Thomas v. State, 587 S.W.2d 707 (Tex. Crim. App. 1979), O'Pry v. State, 642 S.W.2d 748 (Tex. Crim. App. 1982), and Garrett v. State, 642 S.W.2d 779 (Tex. Crim. App. 1982).  See Saunders v. State, 913 S.W.2d 564, 570 (Tex. Crim. App. 1995) (explaining the Clark court=s post-Almanza reaffirmation of the Thomas line of holdings).  

^[3]  Senior Justice Margaret G. Mirabal sitting by assignment.