Castillo v. State

751 S.W.2d 521, 1988 Tex. App. LEXIS 1503, 1988 WL 64032
CourtCourt of Appeals of Texas
DecidedMarch 16, 1988
DocketNo. 04-87-00072-CR
StatusPublished
Cited by3 cases

This text of 751 S.W.2d 521 (Castillo v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Castillo v. State, 751 S.W.2d 521, 1988 Tex. App. LEXIS 1503, 1988 WL 64032 (Tex. Ct. App. 1988).

Opinion

OPINION

CHAPA, Justice.

This is an appeal from a jury conviction of appellant, Angel Castillo, for the offense of possession of marijuana of more than 200 pounds but less than 2,000 pounds. Punishment was assessed at 35 years’ confinement by the jury. Appeal has been perfected to this Court. We affirm.

The only issue is whether the appellant was denied a fair trial due to the lack of effective assistance of trial counsel.

In ineffective assistance appeals, this Court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). For a reversal to be justified because of alleged ineffective assistance of counsel, Strickland sets out the following standard:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed [523]*523the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable....
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. ... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome....
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury....
In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect mil often be so, that course should be followed, (emphasis added)

Strickland v. Washington, 466 U.S. at 687-697, 104 S.Ct. at 2064-70.

These standards have been adopted by the Texas Court of Criminal Appeals. Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.1986) (en banc); King v. State, 649 S.W.2d 42 (Tex.Crim.App.1983) (en banc); Archie v. State, 615 S.W.2d 762 (Tex.Crim.App.1981).

Initially, appellant complains that his trial counsel failed to seek pre-trial discovery through the formal procession of pre-trial motions. However, appellant’s brief fails to show how the results would have probably been different but for the lack of formal discovery, and the record fails to show that no informal pre-trial discovery actually took place.

Appellant next complains because his trial counsel failed to challenge the search of his truck which resulted in the discovery of the contraband. In attempting to satisfy his burden of showing how the failure to challenge the search in reasonable probability caused the results of the trial, appellant points to the following statement of Department of Public Safety Officer Joe Lozano:

At that point I indicated to the driver that I had reson [sic] to believe that there was contraband within the tractor-trailer rig and that I had enough reason to search the vehicle and I had requested a Consent to Search From [sic] the driver.

Appellant apparently contends this satisfies his second burden under Strickland. We must consider the “totality of the evidence” when determining such complaints. We cannot consider one statement from a record of trial in a vacuum.

The record reflects that Officer Joe Loza-no:

1) had the appellant under surveillance during the day in question;
2) discovered the truck and trailer in question were registered in the name of appellant;
3) observed the onions loaded in appellant’s presence;
4) observed Amoldo Reyes Perez drive up to appellant while the loading was done;
5) after a brief meeting of Perez and appellant a short distance from the Onion Warehouse, appellant drove his rig to Perez Nursery on Conway in Mission, Texas;
6) assigned officers Dagoberto Pena and Roy Escaname to surveillance of appellant at the Perez Nursery;
7) received constant reports from Pena and Escaname;
8) followed appellant in his rig north on 281;
[524]*5249) observed appellant’s rig develop brake trouble and stop south of Falfurri-as;
10) approached appellant, who was out of his parked truck;
11) indicated to appellant he had reason to believe there was contraband in the rig, had reason to search, and requested a consent to search from appellant;
12) explained to appellant his rights regarding the consent to search, explaining to him the information on the Texas Department of Public Safety Consent Form, explained to appellant that he did not have to sign the consent to search, and explained to appellant that the consent had to be voluntary;
13) was told by appellant he understood his rights and was willing to consent to the search of his truck and trailer; and
14) discovered the contraband hidden in a secret compartment of the rig. Officer Dagoberto Pena testified that:
1) he was assigned to surveillance duty of appellant at Perez Nursery by Officer Lozano;
2) during the surveillance, he observed the appellant around the rig in the area;
3) after dark, he observed cars coming and going, and people carrying packages to the trailer;
4) he observed a Bronco pull up and be attached to the trailer, and saw people carrying packages to the trailer; and
5) that he reported to Officer Lozano until the appellant left in his rig heading north.

We must conclude that the appellant has failed to show from the totality of the evidence that a reasonable probability exists that but for the failure to challenge the search, the result of the trial would have been different.

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Bluebook (online)
751 S.W.2d 521, 1988 Tex. App. LEXIS 1503, 1988 WL 64032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castillo-v-state-texapp-1988.