IN THE TENTH COURT OF APPEALS
No. 10-19-00361-CR
ALEXANDER RAY CASTILLO, Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 18-05006-CRF-272
MEMORANDUM OPINION
The jury convicted Alexander Castillo of the offense of aggravated robbery and
assessed punishment at twenty years confinement. See TEX. PENAL CODE. ANN. § 29.03
(West). We affirm.
BACKGROUND FACTS
Dakota James testified that on December 12, 2018, she was working the night shift
at a smoke shop. Around 11:15 p.m., a man walked in without a shirt and said that he
was going to rob her. James noticed the man had a gun in his hand. James gave the man $40 from the register, and the man left the shop. James called the police and gave a
detailed description of the person who entered the shop and asked for money. The police
later took James to Walmart where an individual matching the description she had given
was located. James positively identified Castillo as the person who robbed her.
COMMITMENT QUESTION
In the first issue, Castillo argues that the trial court erred in allowing the State to
ask an improper commitment question in violation of Standefer v. State, 59 S.W.3d 177
(Tex. Crim. App. 2001). Commitment questions are those that commit a prospective juror
to resolve, or to refrain from resolving, an issue a certain way after learning a particular
fact. Standefer v. State, 59 S.W.3d at 179. Often, such questions ask for a "yes" or "no"
answer, in which one or both of the possible answers commits the jury to resolving an
issue a certain way. Id. The inquiry for improper commitment questions has two steps:
(1) Is the question a commitment question, and (2) Does the question include facts--and
only those facts--that lead to a valid challenge for cause? Standefer v. State, 59 S.W.3d at
182. If the answer to (1) is "yes" and the answer to (2) is "no," then the question is an
improper commitment question, and the trial court should not allow the question.
Standefer v. State, 59 S.W.3d at 182-183.
The State explained the difference between theft, robbery, and aggravated robbery
to the jury panel using photographs of various situations. The State asked prospective
jurors what was happening in the photograph and then discussed the differences in theft,
robbery, and aggravated robbery by adding additional facts to the scenarios depicted in
the photographs. While showing one photograph, the State introduced additional facts
Castillo v. State Page 2 for context and said that they were looking at a bank and that a person was demanding
cash from the teller. Castillo’s trial counsel objected that the State was trying to commit
the jurors to a particular decision related to the specific facts of this case. The State
responded that they had not asked a question at that point. The trial court overruled the
objection.
The State continued discussing the difference between “using” a deadly weapon
and “exhibiting” a deadly weapon. The State asked, “Is there anybody here this morning,
knowing what the law is, that says, exhibiting a deadly weapon, this could never be an
aggravated robbery, no matter what?” Castillo’s trial counsel renewed the objection
under Standefer, and the trial court overruled the objection. Viewed in context, the
question was not an improper commitment question. The State attempted to explain the
difference between theft, robbery, and aggravated robbery and also explained the
difference between “using” a deadly weapon and “exhibiting” a deadly weapon. The
State then questioned whether the prospective jurors could follow the law. We overrule
the first issue.
ADMISSION OF EVIDENCE
In the second and third issues, Castillo argues that the trial court erred in admitting
testimony. We review a trial court's admission or exclusion of evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court
abuses its discretion if it acts arbitrarily or unreasonably, without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
Castillo v. State Page 3 1990). When considering a trial court's decision to admit or exclude evidence, we will not
reverse the trial court's ruling unless it falls outside the "zone of reasonable
disagreement." Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
OPINION TESTIMONY
In the second issue, Castillo contends that the trial court abused its discretion in
allowing James to give her opinion that he intended to place her in imminent fear of
bodily injury violating the province of the jury and Rule 701 of the Texas Rules of
Evidence. On redirect examination, the State asked James whether Castillo was carrying
the gun as an “open carry” type situation. The State asked, “based on your observation
of how the gun was used in that situation, was it clear or unclear to you that it was being
used to place you in fear so that the defendant could obtain money?” James responded
that it was clear the gun was being used to place her in fear.
Previously on direct examination, the State asked James, “was it clear to you that
he was using the gun in a way to get you to give him the money?” James responded,
“Yes, it was very clear.” Overruling an objection to evidence will not result in reversal
when other such evidence was received without objection, either before or after the
complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Because
the same evidence was admitted without objection, we overrule Castillo’s second issue
on appeal.
RELEVANT EVIDENCE
In the third issue, Castillo complains that the trial court erred in allowing
irrelevant evidence in violation of Rules 401, 402, and 403 of the Texas Rules of Evidence. Castillo v. State Page 4 James testified that when Castillo entered the shop and demanded money, he told her
that he needed the money because his daughter was sick and that he needed gas money
to go visit her in Houston. The State called the mother of Castillo’s daughter to testify
that her daughter was not sick as Castillo had told James. The mother of Castillo’s
daughter testified that she had not been diagnosed with a life-threatening illness and that
she was not in Houston at the time of the offense.
Relevant evidence is "evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." TEX. R. EVID. 401. Evidence that is not
relevant is inadmissible. TEX. R. EVID. 402; see Montgomery v. State, 810 S.W.2d 372, 386
(Tex. Crim. App. 1990) (op. on reh'g). Castillo argues that whether his daughter was sick
or not was not relevant to whether he committed the offense of aggravated robbery.
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IN THE TENTH COURT OF APPEALS
No. 10-19-00361-CR
ALEXANDER RAY CASTILLO, Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 18-05006-CRF-272
MEMORANDUM OPINION
The jury convicted Alexander Castillo of the offense of aggravated robbery and
assessed punishment at twenty years confinement. See TEX. PENAL CODE. ANN. § 29.03
(West). We affirm.
BACKGROUND FACTS
Dakota James testified that on December 12, 2018, she was working the night shift
at a smoke shop. Around 11:15 p.m., a man walked in without a shirt and said that he
was going to rob her. James noticed the man had a gun in his hand. James gave the man $40 from the register, and the man left the shop. James called the police and gave a
detailed description of the person who entered the shop and asked for money. The police
later took James to Walmart where an individual matching the description she had given
was located. James positively identified Castillo as the person who robbed her.
COMMITMENT QUESTION
In the first issue, Castillo argues that the trial court erred in allowing the State to
ask an improper commitment question in violation of Standefer v. State, 59 S.W.3d 177
(Tex. Crim. App. 2001). Commitment questions are those that commit a prospective juror
to resolve, or to refrain from resolving, an issue a certain way after learning a particular
fact. Standefer v. State, 59 S.W.3d at 179. Often, such questions ask for a "yes" or "no"
answer, in which one or both of the possible answers commits the jury to resolving an
issue a certain way. Id. The inquiry for improper commitment questions has two steps:
(1) Is the question a commitment question, and (2) Does the question include facts--and
only those facts--that lead to a valid challenge for cause? Standefer v. State, 59 S.W.3d at
182. If the answer to (1) is "yes" and the answer to (2) is "no," then the question is an
improper commitment question, and the trial court should not allow the question.
Standefer v. State, 59 S.W.3d at 182-183.
The State explained the difference between theft, robbery, and aggravated robbery
to the jury panel using photographs of various situations. The State asked prospective
jurors what was happening in the photograph and then discussed the differences in theft,
robbery, and aggravated robbery by adding additional facts to the scenarios depicted in
the photographs. While showing one photograph, the State introduced additional facts
Castillo v. State Page 2 for context and said that they were looking at a bank and that a person was demanding
cash from the teller. Castillo’s trial counsel objected that the State was trying to commit
the jurors to a particular decision related to the specific facts of this case. The State
responded that they had not asked a question at that point. The trial court overruled the
objection.
The State continued discussing the difference between “using” a deadly weapon
and “exhibiting” a deadly weapon. The State asked, “Is there anybody here this morning,
knowing what the law is, that says, exhibiting a deadly weapon, this could never be an
aggravated robbery, no matter what?” Castillo’s trial counsel renewed the objection
under Standefer, and the trial court overruled the objection. Viewed in context, the
question was not an improper commitment question. The State attempted to explain the
difference between theft, robbery, and aggravated robbery and also explained the
difference between “using” a deadly weapon and “exhibiting” a deadly weapon. The
State then questioned whether the prospective jurors could follow the law. We overrule
the first issue.
ADMISSION OF EVIDENCE
In the second and third issues, Castillo argues that the trial court erred in admitting
testimony. We review a trial court's admission or exclusion of evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court
abuses its discretion if it acts arbitrarily or unreasonably, without reference to any
guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.
Castillo v. State Page 3 1990). When considering a trial court's decision to admit or exclude evidence, we will not
reverse the trial court's ruling unless it falls outside the "zone of reasonable
disagreement." Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).
OPINION TESTIMONY
In the second issue, Castillo contends that the trial court abused its discretion in
allowing James to give her opinion that he intended to place her in imminent fear of
bodily injury violating the province of the jury and Rule 701 of the Texas Rules of
Evidence. On redirect examination, the State asked James whether Castillo was carrying
the gun as an “open carry” type situation. The State asked, “based on your observation
of how the gun was used in that situation, was it clear or unclear to you that it was being
used to place you in fear so that the defendant could obtain money?” James responded
that it was clear the gun was being used to place her in fear.
Previously on direct examination, the State asked James, “was it clear to you that
he was using the gun in a way to get you to give him the money?” James responded,
“Yes, it was very clear.” Overruling an objection to evidence will not result in reversal
when other such evidence was received without objection, either before or after the
complained-of ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Because
the same evidence was admitted without objection, we overrule Castillo’s second issue
on appeal.
RELEVANT EVIDENCE
In the third issue, Castillo complains that the trial court erred in allowing
irrelevant evidence in violation of Rules 401, 402, and 403 of the Texas Rules of Evidence. Castillo v. State Page 4 James testified that when Castillo entered the shop and demanded money, he told her
that he needed the money because his daughter was sick and that he needed gas money
to go visit her in Houston. The State called the mother of Castillo’s daughter to testify
that her daughter was not sick as Castillo had told James. The mother of Castillo’s
daughter testified that she had not been diagnosed with a life-threatening illness and that
she was not in Houston at the time of the offense.
Relevant evidence is "evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence." TEX. R. EVID. 401. Evidence that is not
relevant is inadmissible. TEX. R. EVID. 402; see Montgomery v. State, 810 S.W.2d 372, 386
(Tex. Crim. App. 1990) (op. on reh'g). Castillo argues that whether his daughter was sick
or not was not relevant to whether he committed the offense of aggravated robbery.
James testified that she empathized with Castillo, and it made her want to help
him when he told her his daughter was sick. On cross-examination, James said that
Castillo appeared remorseful for robbing her and had tears in his eyes. Also on cross-
examination, trial counsel asked if it was possible Castillo mentioned lymphoma, and
James responded that it was lymphoma. The child’s mother testified that she had a birth
defect called lymphangioma, but that it was not life-threatening.
The trial court found that the testimony was relevant because it “confirms what
[James is] saying happened to her at the scene.” We cannot say that the trial court abused
its discretion in finding the evidence relevant. The State had to prove that Castillo was
Castillo v. State Page 5 the person who entered the shop and demanded money. The evidence tends to show
that Castillo was the person who committed the aggravated robbery.
At trial, Castillo objected that the testimony was not relevant. Castillo did not
make an objection that the probative value was substantially outweighed by the danger
of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence under Rule 403. Because Castillo did not make an
objection under Rule 403 at trial, he did not preserve that complaint for appellate review.
See Graves v. State, 452 S.W.3d 907, 913 (Tex. App. —Texarkana 2014, pet. ref’d). We
overrule the third issue.
CONCLUSION
We affirm the trial court’s judgment.
TOM GRAY Chief Justice Before Chief Justice Gray, Justice Johnson, and Justice Rose 1 Affirmed Opinion delivered and filed September 8, 2021 Do not publish [CRPM]
1 The Honorable Jeff Rose, Former Senior Chief Justice of the Third Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.
Castillo v. State Page 6