Opinion issued February 21, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00396-CR
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KEVIN CASTRO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Case No. 1318800
MEMORANDUM OPINION
A jury found appellant Kevin Castro guilty of the first-degree felony offense
aggravated robbery with a deadly weapon and assessed a punishment of fifty
years’ imprisonment. 1 See TEX. PENAL CODE ANN. § 29.03 (West 2012). On
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Castro pleaded true to two enhancement paragraphs identifying Castro’s two prior
convictions—one in 2008 and one in 2009—for felony possession of a controlled
appeal, Castro contends that (1) the trial court erred by failing sua sponte to
instruct the jury on article 38.23 of the Texas Code of Criminal Procedure, and
(2) he was denied effective assistance of counsel when his trial attorney failed
either to object or move to suppress a tainted in-court identification, or to
“sufficiently develop facts in the record regarding appellant’s physical
characteristics [as] prejudicial.” We affirm.
Background
On the morning of September 1, 2011, Carlos Ayala was at his apartment
complex working on his car. Two men, one of whom was yielding an automatic
handgun, approached him, asked what he was doing, and stole his wallet. The first
assailant, later identified as Castro, put the gun to Ayala’s stomach and said “I’m
going to rob you.” Ayala threw his wallet. When asked why he threw it, he told
the assailants to “[p]ick it up.” The second assailant then told the first assailant to
“shoot him,” but he did not. The encounter lasted close to a minute. Ayala ran to
his apartment to call the police. While running, Ayala fell, turned back, and saw
the assailants again. When he reached his apartment, Ayala saw the two men drive
off.
substance. During the penalty phase, the State introduced evidence of other prior
convictions, including 2005 and 2008 convictions for unlawfully carrying a
weapon, a 2008 conviction for burglary of a habitation, and a 2005 conviction for
failure to identify oneself to a police officer. Under these enhancement
paragraphs, Castro was subject to a punishment of “a minimum of 25 years, [to] a
maximum of 99 years or life” in prison.
2
Ayala’s wallet contained his driver’s license, check stubs, a credit card and a
Social Security card. Ayala described the two assailants 2 and their vehicle3 to the
first responding officer, who sent an alert over radio broadcast. A second police
officer spotted the car, Castro, and a second man, all matching Ayala’s
descriptions, at a nearby convenience store. When the two suspects drove out of
the parking area, the officer pulled them over for a “felony traffic stop.” The
officer initially arrested the men for failing to wear a seatbelt and having an
expired car registration sticker. A search of the vehicle yielded a loaded,
semiautomatic handgun and a tax identification card bearing Ayala’s name. A
wallet matching Ayala’s description was recovered from the second assailant’s
possession.
2
Ayala described the first assailant as a “very thin,” “smaller statured Hispanic
male,” approximately four feet eleven inches to five feet two inches tall, weighing
approximately 160 pounds, with black crew-cut hair, a short mustache and a light
brown complexion. He was wearing a backwards “golf caddy” or “kangaroo-
type” hat, shorts, and a white shirt. Ayala testified that due to his nervousness
after the incident, he had originally mistaken the color of the hat, describing it as
black. At trial, he testified that the hat was white. The officer who spotted the
men before their arrest described the hat as beige. During closing statements,
appellant’s counsel noted to the jury that by “common sense, looking at
[Castro] . . . [h]e’s way taller than [described].” An arrest report in the clerk’s
record describes Castro’s height as five feet, eight inches and his weight as 155
pounds.
3
Ayala described the two men as driving a maroon car. The only other witness to
the offense was a maintenance worker at the apartment, who informed the
responding officer that “he had also seen a maroon Chevy Suburban going by.”
He did not, however, provide a sufficient description of either of the assailants.
3
The indictment charged that Castro “unlawfully, while in the course of
committing theft of property owned by Carlos Ayala, and with intent to obtain and
maintain control of the property, intentionally and knowingly threaten[ed] and
place[d] Carlos Ayala in fear of imminent bodily injury and death,” while yielding
and exhibiting a deadly weapon—a firearm. Castro pleaded not guilty to the
charge.
At trial, the witnesses gave conflicting testimony about the events following
Castro’s arrest. Ayala recounted that the police instructed him to come to the
scene of the arrest. He drove there and stayed for approximately six to seven
minutes. When Ayala arrived, both Castro and the second suspect were standing in
front of their truck in handcuffs. At the officer’s request, Ayala, while standing
about fifty to sixty feet away, identified the truck and both suspects.
The police officers present at the arrest and search had a different account of
the events. Officers Yzquierdo and Adams both testified that the Ayala had not
seen Castro. Officer Yzquierdo testified that he did not ask Ayala to identify the
appellant, the co-defendant or the car at the scene. Officer Adams testified that he
“made sure that [Ayala] did not see” Castro, the co-defendant or the vehicle. He
explained that the appellant and the co-defendant were in the “backseat of a police
car” when he met with Ayala. Both officers testified that they did not conduct any
formal identification process at the scene.
4
Following the arrest, the officers took the suspects to a nearby police station.
Ayala followed in his own car. When Ayala arrived at the station, the officers
showed him a live lineup and instructed him to identify the alleged assailant. An
officer who worked with Ayala during the identification process described his
demeanor as “frightened.” The officers at the police station had difficulty
persuading Castro to cooperate and subsequently brought him into the lineup in a
“full nelson” headlock; the officers repeated this procedure on every man in the
lineup to maintain consistency. Ayala did not identify Castro in the live lineup—
he later explained that the defendant made distorting faces during the process and
put his chin down.
Approximately forty minutes after conducting the live lineup, the police
asked Ayala to identify his assailant in a photo array. The photo spread contained
a different set of individuals from the live lineup; “the only common denominator”
between the live lineup and the photo array was Castro. Ayala, however, could not
identify Castro in the first showing of the photo array. Thus, a police detective
showed Ayala his wallet and identification card, seized from the assailants, and
told Ayala, “You need to show me who it is.” The officers showed Ayala the
photo array again. At that point, Ayala positively identified Castro and signed his
picture.
5
At trial, Ayala identified Castro as the man who robbed him. Castro’s trial
counsel did not object. His trial counsel had no objections to the guilt-innocence
charge, nor did he request that the jury be instructed to disregard evidence obtained
in violation of federal or Texas law.
Discussion
I. Failure to instruct the jury sua sponte on article 38.23 of the Texas Code
of Criminal Procedure
Castro claims that the trial court erred in not sua sponte providing an article
38.23 jury instruction because: (1) the jury heard disputed evidence about whether
Ayala identified the appellant at the scene of the arrest; (2) Castro’s trial counsel’s
cross-examinations and his closing argument raised the contention that that the
events leading up to Castro’s formal identification were “unlawfully suggestive;”
and (3) that contested fact issue was material to the reliability of Ayala’s in-court
identification of Castro.
A. Standard of review
A trial court must submit to the jury “the law applicable to the case.” See
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2012); Bolden v. State, 73 S.W.3d
428, 431 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When a statute requires
an instruction under the circumstances, that instruction is “law applicable to the
case,” and the trial court must instruct the jury regarding what is required under the
statute. Oursbourn v. State, 259 S.W.3d 159, 180–81 (Tex. Crim. App. 2008).
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B. Law and analysis
Texas Code of Criminal Procedure article 38.23(a) provides 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.
In any case where the legal evidence raises an issue hereunder, the
jury shall be instructed that if it believes, or has a reasonable doubt,
that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any evidence
so obtained.
TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2012). The Texas Court of
Criminal Appeals has held that article 38.23, by its terms, applies only to illegally
obtained evidence, not to in-court identifications. Allen v. State, 511 S.W.2d 53,
54 (Tex. Crim. App. 1974); see Andujo v. State, 755 S.W.2d 138, 143 (Tex. Crim.
App. 1988). Further, a challenge to the accuracy of witness identification raises
the defensive issue of mistaken identification. See Wilson v. State, 581 S.W.2d
661, 663 (Tex. Crim. App. 1979) (observing that mistaken identification is
traditional defensive issue, because State has burden to prove identity of defendant
as party who committed crime charged). A trial court must submit the issue if the
evidence warrants it and the defendant timely requests it. See id. The trial court,
however, has no statutory duty to sua sponte instruct the jury on an unrequested
defensive issue, because a defensive issue is not “applicable to the case” unless the
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defendant timely requests the issue or objects to the issue’s omission from the jury
charge. Oursborn, 259 S.W.3d at 180. No such request or objection occurred
here. Accordingly, we hold that the trial court did not err by failing to sua sponte
instruct the jury on the issue of Ayala’s in-court identification.
II. Ineffective Assistance of Counsel
In his second point of error, Castro argues that “the cumulative effect of
[his] trial counsel’s errors denied [him the] effective assistance of counsel.” Castro
points to his trial counsel’s failure (1) to object to Ayala’s in-court identification of
Castro, (2) to move to suppress Ayala’s anticipated testimony, and (3) to
sufficiently develop the evidence regarding appellant’s physical characteristics.
A. Standard of review
To prevail on a claim of ineffective assistance of counsel, an appellant must
show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable
probability that the result of the proceeding would have been different. Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Mitchell v. State,
68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999). A reasonable probability is “a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068; Mitchell, 68 S.W.3d at 642. A failure to make a showing under either prong
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defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110
(Tex. Crim. App. 2003).
In analyzing an ineffective assistance claim, courts apply a “strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Robertson v. State, 187 S.W.3d 475, 482 (Tex. Crim.
App. 2006) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2052). Before an
appellate court may find that counsel was ineffective, the record must affirmatively
demonstrate counsel’s deficiency; “the court must not engage in retrospective
speculation.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing
Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). “It is not
sufficient that appellant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence.” Mata
v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). “When such direct
evidence is not available, we will assume that counsel had a strategy if any
reasonably sound strategic motivation can be imagined.” Lopez, 343 S.W.3d at
143 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). “In
making an assessment of effective assistance of counsel, an appellate court must
review the totality of the representation and the circumstances of each case without
the benefit of hindsight.” Lopez, 343 S.W.3d at 143 (citing Robertson, 187 S.W.3d
at 483). Isolated instances of a failure to object to inadmissible argument or
9
evidence do not necessarily render counsel ineffective. See Robertson, 187 S.W.3d
at 483.
B. Analysis
Under the first prong of Strickland, appellant must show that his trial
counsel’s performance fell below the objective standard of reasonableness. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064 (“This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”). The appellant contends that
Ayala’s in-court identification of Castro was tainted, as it was based on an
impermissibly suggestive pre-trial identification process, and his counsel erred in
failing to move to suppress Ayala’s anticipated identification of Castro as the
assailant, to object to Ayala’s in-court testimony, and to elicit and preserve
evidence of a more detailed physical description of Ayala.
The record contains no reason or explanation as to why trial counsel did not
move to suppress Ayala’s in-court identification. Absent an explanation, Castro
cannot satisfy the first prong of Strickland. Bone v. State, 77 S.W.3d 828, 830
(Tex. Crim. App. 2002), cited in Greene v. State, 124 S.W.3d 789, 791–92 (Tex.
App.—Houston [1st Dist.] 2003, pet. ref’d). The Court of Criminal Appeals has
explained that “any allegation of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness.”
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Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (quoting Thompson, 9
S.W.3d at 814). While a single point of egregious error may render a counsel’s
performance ineffective, in only rare instances will the record on direct appeal
provide sufficient evidence. Thompson, 9 S.W.3d at 813 (citing Jackson v. State,
766 S.W.2d 504, 508 (Tex. Crim. App. 1985)); Mallet, 65 S.W.3d at 63. In
Thompson, the appellant contended that his trial counsel was ineffective after he
failed to object to the introduction of “testimony already declared inadmissible
hearsay” and then failed to “request a mistrial” after its introduction. 9 S.W.3d at
809. The Court of Criminal Appeals held that the record, silent as to a “discernible
explanation” for counsel’s motivations, was insufficient to satisfy Strickland,
because counsel could have had a reasonable motive for his actions, under the
specific facts of the case. Id. at 814.
2. Reasonable probability of a different result
Castro likewise fails to prove the second prong, that it is “reasonabl[y]
probab[le] that, but for his counsel’s unprofessional errors, the result of the
proceeding would have been different.” Bone, 77 S.W.3d at 833 (quoting
(Mitchell, 68 S.W.3d at 642); see Strickland, 466 U.S. at 687, 104 S. Ct. at 2064
(“[T]he defendant must show that the deficient performance prejudiced the
defense ,” and that “counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.”).
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Putting aside Ayala’s in-court identification of Castro, the remaining
evidence would allow a reasonable jury to find Castro guilty of the robbery. See
Green, 124 S.W.3d at 792. Ayala described Castro with reasonable accuracy to the
first responding officer before the pretrial identification procedure. A third party
confirmed that, close to the time of the robbery, he saw a maroon Suburban—the
same type of vehicle that Castro was arrested in—near the apartment complex.
The arresting officer found Castro in the Suburban, as well as Ayala’s tax
identification card and a] semi-automatic handgun that matched Ayala’s
description of the gun that Castro pointed at him. This evidence sufficiently ties
Castro to the crime such that Castro has not shown a probable likelihood that the
outcome would be different had counsel successfully objected to the line-up.
Conclusion
We hold that the trial court had no sua sponte obligation to instruct the jury
on article 38.23 of the Texas Code of Criminal Procedure. We further hold that
Castro has not met his burden to show that he was denied effective assistance of
counsel. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
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