CONCURRING AND DISSENTING OPINION
No. 04-11-00422-CR
Joel Julian CASTILLO,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2008CR10190
The Honorable Angus McGinty, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Concurring and Dissenting Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: March 1, 2013
I join the majority’s opinion in all regards except for the majority’s conclusion that
Officer Swindells’s in-court identification of Castillo should not have been admitted. I do agree
that Officer Swindells’s viewing of Castillo’s booking photo prior to trial was an impermissibly
suggestive pretrial identification of Castillo. Under the totality of the circumstances, however,
Officer Swindells’s observation of Castillo at the time of the offense, and his certain
identification of Castillo at the booking hearing, militates against a determination that the in-
court identification was the result of improper pretrial identification procedures or that there was
a substantial likelihood of misidentification. See Gamboa v. State, 296 S.W.3d 574, 581–82
(Tex. Crim. App. 2009) (evidence of witness’s other positive identifications removed any
possible taint from single impermissibly suggestive pretrial identification). Accordingly, I
Concurring and Dissenting Opinion 04-11-00422-CR
respectfully dissent from the majority’s holding on this issue but concur in the remainder of the
opinion.
Catherine Stone, Chief Justice
DO NOT PUBLISH
-2-
Joel Julian Castillo v. State
Combined Opinion