Norberto Manuel Castor v. The State of Texas--Appeal from 350th District Court of Taylor County

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State: Texas

Court: Texas Northern District Court

Docket No: 11-03-00071-CR

Case Date: 09/18/2003

Plaintiff: Norberto Manuel Castor

Defendant: The State of Texas--Appeal from 350th District Court of Taylor County

Preview:Norberto Manuel Castor v. The State of Texas--Appeal
from 350th District Court of Taylor County
11th Court of Appeals
Eastland, Texas
Opinion
Norberto Manuel Castor
Appellant
Vs. No. 11-03-00071-CR B Appeal from Taylor County
State of Texas
Appellee
The trial court convicted Norberto Manuel Castor of the following offenses against his girlfriend=s 10-year-old
daughter: aggravated sexual assault by causing his sexual organ to penetrate the victim=s sexual organ, aggravated
sexual assault by causing his tongue to penetrate her sexual organ; sexual contact by causing his hand to touch her
genitals; sexual contact by causing her hand to touch his genitals; sexual performance by a child of deviate sexual
intercourse; and possession of child pornography of appellant performing deviate sexual intercourse on the victim.[1]
The trial court assessed appellant=s punishment at confinement for life for the 2 aggravated sexual assaults and
confinement for 20 years for each of the other 4 offenses. We affirm.
All of the offenses occurred on December 13, 2001. Appellant had recorded the offenses on two videotapes which
were admitted as State=s Exhibits Nos. 12 and 13. In his first issue, appellant contends that the trial court erred in
denying his motion to suppress both videotapes. Appellant contends that the tapes were seized as a result of an illegal
search by his girlfriend. Appellant contends that the search violated TEX. CODE CRIM. PRO. ANN. art. 38.23
(Vernon Supp. 2003).[2]
The only witness at the suppression hearing was Maria Teresa Torres, the victim=s mother, who was also appellant=s
Aoff and on@girlfriend for 11 years. Torres testified that she had five children and that appellant was the father of her
daughter who was younger than the victim. Torres stated that, all during their relationship, they each kept their own
residences. When Torres moved to Abilene, appellant also moved but did not live with her. During the time that they
were going together, appellant would come to Torres= home and spend the night, Torres would go to appellant=s home
and spend the night, and Torres= children (including her daughter by appellant and the victim) would go to appellant=s
house and spend the night.
At the time of the offense and two months later when she discovered the videotapes, Torres had a key to appellant=s
house, and he had a key to hers. Appellant had told Torres that she could go inside his home to get whatever she
needed. Appellant also said that Torres did not need to ask for permission. Torres testified that appellant had insisted
that she have a key because he said that his house was just as much hers as it was his. Torres had used the key to get
things she needed for the kids, and appellant had not become mad.
Prior to the offenses in December, appellant had borrowed Torres= mother=s video camera and two tapes. Her mother
had mentioned to Torres that appellant had had her camera for a while and that he had not returned it. In February
2002, Torres went to appellant=s house to find her mother=s video camera and her two videotapes. She was also
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searching for drugs. Torres had previously caught appellant using drugs and did not want him around her daughters if
he continued using drugs. Torres testified that, when she confronted appellant about using drugs, appellant stated she
could go over to his home and search for drugs. She used the key appellant had given her to enter his home and found
her mother=s video camera behind a door. Torres found two small videotapes underneath a mattress. Her mother=s
video camera used tapes smaller that a standard VHS tape.
Torres locked appellant=s house and went to her home. When she watched the tapes to be sure they were her mother=s
tapes of parties and Quinceaneras, Torres saw images of appellant engaging in criminal activity with the victim. Torres
fast forwarded the tapes and saw images of music and dancing consistent with what her mother had videotaped. Torres
called 9-1-1 and turned the tapes over to the police. The next day, appellant=s brother and sister asked Torres to give
them her key to appellant=s home.
In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial
court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85
(Tex.Cr.App.1997). We must afford the same amount of deference to the trial court=s rulings on Amixed questions of
law and fact,@ such as the issue of probable cause, if the resolution of those ultimate questions turns on an evaluation
of credibility and demeanor. Guzman v. State, supra at 89. Appellate courts, however, review de novo Amixed
questions of law and fact@ not falling within the previous category. Guzman v. State, supra. When faced with a mixed
question of law and fact, the critical question under Guzman is whether the ruling Aturns@ on an evaluation of
credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 773 (Tex.Cr.App.1998). A question Aturns@ on an
evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to
add up to what is needed to decide the substantive issue. Loserth v. State, supra. We must view the record in the light
most favorable to the trial court=s ruling and sustain the trial court=s ruling if it is reasonably correct on any theory of
law applicable to the case. Guzman v. State, supra.
Appellant contends that Torres committed the offense of theft[3] when she entered his home, searched the home, found
the videotapes, and took them. Because her actions constituted an offense, appellant argues that the tapes should have
been excluded pursuant to Article 38.23. We disagree.
Torres did not commit a crime when she entered appellant=s home and when she took her mother=s property.
Appellant had given her a key and his permission not only to enter but also to search and to remove items from his
home. The items Torres removed belonged not to appellant but to Torres= mother who wanted the items returned. The
trial court did not abuse its discretion when it denied the motion to suppress. The first issue is overruled.
In his second and third issues, appellant contends that the evidence is legally and factually insufficient to support his
conviction. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664
(Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a
neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong
and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly
outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly
unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283
(Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404
(Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).
The victim testified that she would stay at appellant=s home usually with her half sister, who was appellant=s child.
Appellant=s sister and her children lived with appellant. Since his home had two bedrooms, appellant=s sister and her
children lived in one bedroom, and appellant lived in the other. When they would stay with appellant, the victim and
her half sister would sleep with appellant in his room. The victim described how, one time when she was taking a
shower before going to school, appellant entered the bathroom and asked if he could wash her. When she told him no,
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appellant left. He returned with a video camera, got undressed, and got into the shower with her. He washed her body
and left. She got dressed and went into the bedroom. Appellant woke her half sister and told her to take a shower.
While her half sister was bathing, appellant told the victim to lie on the bed. He got on top of her. At some point,
appellant took off the victim=s clothes. The victim testified that she did not remember what all happened and that the
next thing she could remember was appellant telling her to put her clothes back on.
State=s Exhibits Nos. 12 and 13 contain the same images. Exhibit No. 13 is marked AWork Copy.@ The camera
automatically dated the images of appellant and the victim as made on December 13, 2001, and inserted the time of
6:59 a.m. to 7:03 a.m. for the images in the bathroom and 7:06 a.m. to 7:10 a.m. for the images in the bedroom. In the
tape, the victim was taking a shower and being rubbed with soap by appellant both while appellant is clothed and
standing outside of the shower and while appellant is naked and inside the shower with the victim. Appellant touched
the victim=s genitals and her buttocks. He also sexually stimulated himself. Appellant left the shower and the
bathroom. However, he kept the camera in the bathroom and recorded the victim finishing her shower. Next, appellant
and the victim are in a bedroom. The tape showed appellant touching the victim=s chest and genitals with his hands,
showed him taking her hand and placing it on his genitals as he directed her movements, and showed him penetrating
the victim=s sexual organs with his tongue and with his sexual organ. During these images, appellant repositioned the
camera several times, and the victim often tried to cover her genital area with her sweater. Images of appellant
sexually stimulating himself while he was near the victim were also depicted in the tape.
We find that the evidence is legally sufficient to the support the convictions. Likewise, we find that the evidence is
factually sufficient and that the convictions are neither clearly wrong nor manifestly unjust. The second and third
issues are overruled.
The judgments of the trial court are affirmed.
TERRY McCALL
JUSTICE
September 18, 2003
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]The State filed a single multicount indictment.
[2]Article 38.23 provides in part that:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the
State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against
the accused on the trial of any criminal case.
[3]TEX. PENAL CODE ANN. '31.03 (Vernon 2003) defines the offense of theft as when a person A unlawfully
appropriates property with intent to deprive the owner of property.@
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