No. 04-06-00524-CR
Delivered and Filed: October 10, 2007. DO NOT PUBLISH.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-9149, Honorable Maria Teresa Herr, Judge Presiding. AFFIRMED
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
ALMA L. LÓPEZ, Chief Justice.
A jury convicted Paul Castellano of murder. On appeal, Castellano contends that the trial court erred in: (1) admitting the testimony of a chaplain who spoke with Castellano at the hospital where the victim was taken for treatment; (2) including a "dynamite" or "Allen" instruction in the jury charge; and (3) denying Castellano's request for juror information cards. We affirm the trial court's judgment.
Background
In July of 2004, Paul Castellano was living in an apartment with his girlfriend, Jessica Mann, their baby, and two of Mann's children from a previous relationship, a four-year-old boy and a two-year-old girl. Mann worked during the day, and Castellano watched all three children while she was at work. On July 1, 2004, Castellano called 911 while Mann was at work to report that the four-year-old boy, J.P., had fallen down and was having trouble breathing. When emergency medical technicians arrived at the apartment, J.P. had a "dead look," was cold to the touch, and did not have a pulse. Technicians also noticed that J.P. had a black eye and several bruises on his body. Paramedics took J.P. and Castellano to the hospital. At the hospital, a hospital chaplain spoke with Castellano in a family waiting room. J.P. was pronounced dead within two hours of his arrival at the hospital. Castellano was later charged with his murder. A jury convicted Castellano of the murder and sentenced him to seventy-five years in prison. This appeal followed. Agent of the State
In his first issue, Castellano contends that the trial court erred in admitting the testimony of Edward Haines, a chaplain who spoke with Castellano at the hospital where J.P. was taken for treatment. Specifically, Castellano asserts that Haines, whose job it was to give spiritual care and emotional support to patients, families, and staff members at the hospital, was acting as an agent of the State when he spoke with Castellano about what happened to J.P. However, Castellano did not object to any of Haines's testimony at trial. To preserve error in the admission of evidence, a party must make a timely objection, state the specific basis for the objection, and obtain a ruling from the trial court. See Tex. R. App. P. 33.1; Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). Because Castellano did not object to Haines's testimony at trial, he has failed to preserve error for our review. Accordingly, we overrule Castellano's first issue. Jury Charge
In his second issue, Castellano argues that the trial court improperly included a "dynamite" or "Allen" charge in the jury charge. Castellano alleges that the following portion of the jury charge contains a "dynamite" or "Allen" charge: You are the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given to the testimony, but you are bound to receive the law from the Court which is herein given to you and be governed by that law. In order to return a verdict, each juror must agree to that verdict, but jurors have a duty to consult each other and to deliberate with a view to reaching unanimous agreement, if that can be done without violence to individual judgment. Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors. In the course of deliberations, a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous. However, no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict. The language in the final three paragraphs of the cited portion of the jury charge is almost identical to language set forth in a jury charge challenged in Garza v. State, 974 S.W.2d 251, 255-56 (Tex.App.-San Antonio 1998, pet. ref'd). In Garza, the defendant specifically complained that the portion in the charge stating that the jurors had a duty to "deliberate with a view of reaching an agreement" was coercive. Id. at 256. Here, Castellano complains of a similar provision stating that the jurors had "a duty to consult each other and to deliberate with a view to reaching unanimous agreement," as well as provisions stating that the jurors were "bound to receive the law from the Court which [was] [t]herein given to [them] and be governed by that law," and that "a juror should not hesitate to re-examine his own views and change his opinion if convinced it is erroneous." Castellano asserts that the charge was coercive because it was given prematurely in the initial jury charge rather than in a situation where the jury was deadlocked. However, the almost-identical language in Garza was also given in the initial charge, and in that case, this court stated that there was no reason to conclude that such an instruction was more coercive in the initial charge than it would be after the jury was deadlocked. Id. We stated: "Indeed, some courts have determined that this type of instruction is less coercive if included in the initial jury charge." Id. (citing Loving v. State, 947 S.W.2d 615, 619 (Tex.App.-Austin 1997, no pet.) (citing cases)). We also concluded that the admonishment in the charge stating that "no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict," eliminated any potential for coercion. Id. The same admonishment is present in the jury charge in this case. Thus, consistent with the outcome in Garza, we conclude that the instructions in this case were not coercive. See Id. Because the instructions were not coercive, the trial court did not err in including the instructions in the charge. We overrule Castellano's second issue. Juror Information Cards
In his third issue, Castellano contends that the trial court erred in refusing to disclose the juror information cards after trial. After the completion of trial, Castellano filed a motion requesting the trial court to unseal the cards. The trial court denied the request. Castellano raised the issue again in his motion for new trial. At a hearing on the motion, Castellano's post-trial attorney informed the trial court that he was requesting the juror information because he wanted to send letters to the jurors asking them to speak with him but he could not do so because Castellano's trial attorney had not written down the names of the jurors, and the trial court had collected the juror information cards. The trial court denied the request. On appeal, Castellano argues that his appellate counsel is entitled to the juror information cards because article 35.29 of the Texas Code of Criminal Procedure denies access to the information only to third parties, not to the prosecutor or defense attorney. He argues that because his trial attorney could have retained the juror information cards, or at least the notes the attorney made about the individual jurors, his post-trial attorney should also be entitled to the information. Assuming, without deciding, that Castellano's trial attorney could have retained the juror information cards, the cards in this case were in the trial court's possession, and Castellano was required to show good cause in order to gain access to the cards after trial. See Tex. Code Crim. Proc. Ann. art. 35.29 (Vernon Supp. 2007) (juror information is confidential and may not be disclosed by the court unless a party from the trial applies and shows good cause for the information); Esparza v. State, 31 S.W.3d 338, 340 (Tex.App.-San Antonio 2000, no pet.) ("Juror information shall remain confidential except upon a showing of good cause."). By the plain language of article 35.29, the juror information could not be disclosed to Castellano's post-trial attorney except upon an application to the trial court showing good cause. See Tex. Code Crim. Proc. Ann. art. 35.29 (Vernon Supp. 2007). Castellano fails to make a showing of good cause because he fails to point to any place in the record that would suggest juror misconduct. He simply states that he has "reason to believe" that juror misconduct occurred, and he argues that his trial counsel's failure to retain juror information and the fact that he had new counsel after trial are sufficient to constitute good cause. However, good cause must be based on more than mere conjecture or a possibility that juror misconduct occurred; it must have a firm foundation. See Esparza, 31 S.W.3d at 340. A "reason to believe" that juror misconduct occurred, without any examples or citations to the record, does not constitute good cause. Nor does obtaining a new attorney post-trial, which is irrelevant to the issue of whether juror misconduct occurred. Because Castellano failed to show good cause, the trial court did not err in denying his requests for disclosure of the juror information cards. See Id. at 340-41. We therefore overrule Castellano's third issue. Conclusion
We affirm the trial court's judgment.