Ramon Castillo-Salgado v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00393-CR
RAMON CASTILLO-SALGADO,
A/K/A RAMON CASTILLO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 69th District Court
Moore County, Texas
Trial Court No. 4682, Honorable Ron Enns, Presiding
July 30, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Ramon Castillo-Salgado a/k/a Ramon Castillo appeals his conviction
for aggravated sexual assault of a child1 and resulting prison sentence of fifteen years.
Through one issue he complains of trial court rulings pertaining to his attempts to
impeach the child’s mother as a witness. We will affirm.
1
See TEX. PENAL CODE ANN. § 22.021 (West Supp. 2013).
Background
Because appellant does not challenge the sufficiency of the evidence, we will
recite only those background facts necessary for the disposition of the appeal.
Appellant was indicted and tried by jury on the charge of sexually assaulting
S.O., a child younger than age fourteen. P.O.C. is the mother of S.O. and the wife of
appellant. Appellant is not the father of S.O.
P.O.C. was not the outcry witness, but she was a witness for the State. During
trial, at a hearing outside the presence of the jury, appellant’s counsel asked P.O.C.,
“were you convicted of an offense in the state of Oklahoma?” She replied, “No, I
wasn’t.” P.O.C., who appeared without counsel, speaks broken English. Her exchange
with defense counsel continued. P.O.C. stated, “That’s just what I remember that I
wasn’t guilty. The last court, that’s what they say.”
After some discussion among defense counsel, the prosecutor and the court,
defense counsel continued his examination of P.O.C. He asked her if she had obtained
a “false birth certificate.” At the State’s request, the court then admonished P.O.C. of
her Fifth Amendment rights. This was done directly and through an interpreter.
Defense counsel continued his questioning, asking P.O.C. again about a false birth
certificate, then asking her if she had “driver’s licenses from more than one state.” She
denied having either. When counsel asked her if she had “driver’s licenses in names
other than your own showing your birth date,” P.O.C. invoked her Fifth Amendment right
to refuse to answer. With that, the proceeding recessed for the day.
2
The next morning, the hearing outside the presence of the jury resumed.
Defense counsel put to P.O.C. the question, “[In February or March 2006], were there
charges filed against you in Guymon, Oklahoma?” When P.O.C. did not respond
directly, defense counsel requested that the court instruct her to answer. The court
responded by reminding P.O.C. of its prior admonition that she could refuse to answer a
question. She refused to answer.
Continuing the effort to impeach P.O.C., defense counsel sought admission of a
printout from the National Crime Information Center (NCIC) pertaining to P.O.C. The
State objected on hearsay grounds. The court allowed defense counsel to make an
offer of proof of the substance of the report, and that was dictated into the record. The
printout does not appear in the record. The court then sustained the State’s objection
finding the NCIC report “not admissible before the jury at this time.” The jury returned
and trial resumed.
Appellant was convicted and sentenced as noted. This appeal followed.
Analysis
Appellant presents one issue consisting of two subparts. First, he argues P.O.C.
has a prior felony conviction and the trial court erred by allowing her to avoid answering
questions concerning her conviction by asserting the Fifth Amendment privilege against
self-incrimination. Second, appellant contends the trial court abused its discretion by
denying him the opportunity to impeach P.O.C. on her alleged criminal conduct reported
in the NCIC printout.
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P.O.C.’s Right to Remain Silent
We review the decision of a trial court permitting a witness to invoke her Fifth
Amendment privilege against self-incrimination for abuse of discretion. United States v.
Washington, 318 F.3d 845, 856 (8th Cir. 2003).
The Fifth Amendment states in part, “No person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S. CONST. amend. V; Malloy v. Hogan,
378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); Walters v. State, 359 S.W.3d 212,
215 (Tex. Crim. App. 2011). The Fifth Amendment privilege is not limited to the
defendant in a criminal trial. A witness is privileged not to answer official questions “in
any other proceeding, civil or criminal, formal or informal, where the answers might
incriminate [her] in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420,
426, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70,
77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973)). This privilege covers not only “answers that
would in themselves support a conviction . . . but likewise embraces those which would
furnish a link in the chain of evidence needed to prosecute the claimant.” Ohio v.
Reiner, 532 U.S. 17, 21, 121 S. Ct. 1252, 149 L. Ed. 2d 158 (2001) (quoting Hoffman v.
United States, 341 U.S. 479, 486, 71 S. Ct. 814, 95 L. Ed. 1118 (1951)).
To permit exercise of the privilege “[i]t need only be evident from the implications
of the question, in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be dangerous because
injurious disclosure could result.” Hoffman, 341 U.S. at 486-87; see Grayson v. State,
684 S.W.2d 691, 696 (Tex. Crim. App. 1984) (A trial court “cannot compel a witness to
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answer unless it is perfectly clear, from a careful consideration of all the circumstances
in the case, that the witness is mistaken in asserting the privilege, and that the answer
cannot possibly tend to incriminate the witness . . .”).
We cannot agree that the record, closely read, supports appellant’s contention
the trial court deprived him of the opportunity to question P.O.C. about a previous felony
conviction through improperly permitting her to refuse to answer. As we have noted in
our recitation of the events at trial, the trial court admonished P.O.C. about her Fifth
Amendment rights when appellant began to ask about her possession of a false birth
certificate and multiple driver’s licenses. Appellant does not deny that P.O.C.’s knowing
possession of such items would potentially be incriminating, and thus properly the
subjects of Fifth Amendment exercise.2 The only occasion on which appellant sought a
ruling from the trial court regarding P.O.C.’s refusal to answer occurred on the morning
of the resumption of the hearing outside the jury’s presence when, as we have recited,
appellant asked the court to instruct P.O.C. to answer his question regarding “charges
filed against” her in 2006 in Guymon, Oklahoma. P.O.C. and other courtroom
participants may have understood at that time that defense counsel was inquiring about
her felony conviction when he asked about “charges filed against” P.O.C., but it is not
clear to us that the trial court necessarily would have so understood his question.
Counsel’s following questions to P.O.C. do inquire about a conviction, but he did not
seek the trial court’s assistance to require P.O.C. to respond to those questions.
2
Defense counsel later attempted to examine P.O.C. about a social security
card, a birth certificate, and four driver’s licenses from different states. When she
refused to answer the questions and the court sustained the State’s objection to the
admission of these items, defense counsel stated, “I’ve made [the prosecutor] aware of
possible violations of the laws of this—of the laws of the United States and I would ask
him to follow up on prosecution of that if he deems it necessary that it be followed up.”
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Counsel shortly turned to an effort to introduce the NCIC report. Having carefully
reviewed the record, we are unable to see an abuse of discretion in the trial court’s
handling of counsel’s questioning of P.O.C. regarding a prior felony conviction.3
Admissibility of the NCIC Report
We review the ruling of a trial court on the admissibility of evidence for abuse of
discretion. Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). There is
no abuse of discretion if the ruling finds reasonable support in the record and is correct
under any theory of law applicable to the case. Id.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Lopez v. State, 343 S.W.3d 137, 140 n.4 (Tex. Crim. App. 2011) (citing TEX.
R. EVID. 801(d)). Rule of evidence 609 allows the credibility of a witness to be attacked
with evidence, elicited from the witness or established by public record, that the witness
has been convicted of a felony or crime of moral turpitude. TEX. R. EVID. 609(a).
While he raises a contention the trial court erred by denying admission of the
NCIC report, appellant at the same time seems to acknowledge that the printout was
both not authenticated and not shown to fit an exception to the hearsay rule. The trial
3
In addition, we note case law holding that the Fifth Amendment privilege may
be invoked even by a person who has pled guilty and been sentenced because of the
risk of a perjury charge if her testimony contradicts any previous judicial admissions.
See Suarez v. State, 31 S.W.3d 323, 329 (Tex. App.—San Antonio 2000, no pet.) (co-
defendant who had pled guilty and been sentenced still properly could invoke Fifth
Amendment privilege). According to appellant’s offer of proof, the 2006 Oklahoma
offense to which P.O.C. plead guilty was a charge of “misuse of forged counterfeit
suspended driver’s license,” a felony. By the time of her testimony P.O.C.’s sentence in
the Oklahoma case had apparently been served.
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court sustained the State’s hearsay objection. As noted, the NCIC report is not in the
record and from its brief description we find no basis for its authentication, nor a
predicate for its admission through an exception to the hearsay rule. The trial court did
not err by refusing its admission. See United States v. Hendricks, 143 Fed. Appx. 168,
172 (11th Cir. 2005) (per curiam, not designated for publication) (citing United States v.
Long, 578 F.2d 579, 581 (5th Cir. 1978) (an NCIC report is hearsay not coming within a
recognized exception to the hearsay rule)); Vlietstra v. State, 800 N.E.2d 972, 975 n.5
(Ind. Ct. App. 2003) (collecting cases for hearsay nature of NCIC reports); State v.
Stewart, 2014 UT App 112, ¶ 11 n.3, 327 P.3d 595 (same).
On the record before us, we conclude the trial court did not abuse its discretion in
ruling the NCIC report was inadmissible. Finding no abuse of discretion by the trial
court, we overrule appellant’s issue and affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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