Jaime Villanueva Castro v. the State of Texas
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Opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00286-CR
Jaime Villanueva Castro, Appellant
v.
The State of Texas, Appellee
FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-00-002647, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Jaime Villanueva Castro, who absconded during his trial, on
both counts of a two-count indictment charging him with the first-degree felony offense of
aggravated sexual assault of a young child and the second-degree felony offense of indecency
with a child by sexual contact, committed against eight-year-old A.B. See Tex. Penal Code
§§ 21.11(a)(1), 22.021(a)(1)(B)(i), (2)(B). The jury assessed punishment at fifty years’
imprisonment on the first count and twenty years’ imprisonment on the second. See id. §§ 12.32,
.33. The district court rendered judgments of conviction on the jury’s verdict and ordered that
the sentences run concurrently.
In six issues on appeal, Castro contends that his convictions for both offenses
violate the Fifth Amendment’s prohibition against double jeopardy, that his trial counsel
provided ineffective assistance, and that the court reporter’s destruction of the voir dire record more than fifteen years after the trial entitles him to a new trial. Because of the double-jeopardy
violation, we will vacate the judgment of conviction for indecency with a child by sexual contact
and affirm the judgment of conviction for aggravated sexual assault of a young child.
BACKGROUND
After Castro attended the first and second day of his jury trial in 2002, he failed to
appear for the remainder of his trial, his bond was forfeited, and the district court issued a capias.
Trial continued without Castro. During trial, the jury heard evidence that on November 8, 1999,
when A.B. was eight years old, she lived in an apartment with her two younger brothers, her
mother, mother’s boyfriend, mother’s husband, and one of her husband’s brothers, Santiago.1
On that date, some visitors were also staying at the apartment, including a man nicknamed
“Chaparro” or “Shorty,” and another of husband’s brothers, Castro.2 That night, Castro and the
other men in the apartment played games and drank beer at the kitchen table while A.B., her
brothers, and her mother were sleeping in the bedroom that they shared. During the night, Castro
went into the bedroom and put his finger inside A.B.’s vagina.
A.B., who testified that she was ten years old and in fifth grade at the time of the
2002 trial, also testified specifically that “Jaime [Castro] touched [her]” “[w]ith his finger,” “[o]n
[her] private part,” “down there,” which she acknowledged as her vagina. Using a female doll,
A.B. pointed to the “private part” where he touched her. Further, A.B. clarified that his finger
went inside her private part. Using a male doll, A.B. demonstrated how he came up to her and
1 A.B.’s mother testified that she married Ismael Castro “to fix his papers,” that they resided in separate rooms of the apartment, and that they did not have a physical relationship. Ismael’s brother is the appellant, Jaime Villanueva Castro. 2 We refer to the brothers by their first names for clarity because Ismael, Santiago, and Castro share the same last name.
2 “sort of bent down.” A.B. testified that she was wearing a nightgown, that he touched her
underneath her clothing and underwear, and that he went through the leg part of the underwear to
touch her vagina with his finger. A.B. recalled that afterward, he went into the restroom, and she
fell back to sleep. He later returned to the bedroom, and A.B. testified that “when he tried to do
it the second time, I woke up, and I told my mom.” The prosecutor asked A.B., “Now did you
say he came out a second time?” A.B. responded, “Yes, but he tried to touch me, but I woke up
and told my mom.” The prosecutor asked, “What did you tell your mom?” A.B. replied, “That
he touched me.”
A.B.’s mother testified that A.B. was in third grade and under fourteen years of
age on November 8, 1999. That night, Castro went into the bedroom and woke A.B.’s mother to
borrow a cassette, which she gave to him. Later that night, A.B. woke her mother and said,
“Ismael’s brother, Jaime [Castro] keeps on coming into my room, touching my butt.” A.B.
pointed to Castro when her mother asked who did it. A.B.’s mother confronted Castro, who said
that A.B. was lying and must have been dreaming about him. A.B.’s mother told Castro that she
wanted him out of her house, and when she told him that she was going to call the police, Castro
said “he wasn’t going to leave,” that “[h]e had nothing to hide or he wasn’t scared or something,
but he left the next day.” She testified that after Castro was charged, his brothers Ismael and
Santiago told her boyfriend that they wanted her “to drop the charges, and they offered [her]
money.” On cross-examination, she acknowledged that she did not know for a fact that Castro
had put them up to it.
After A.B.’s mother testified, the jury heard from Camille Haberman, a counselor
who conducted A.B.’s forensic interview. Haberman testified that A.B. said “her mother’s
husband’s brother” went into a bedroom where she was sleeping, touched her vagina—which
3 A.B. called her “private”—with his hand, and went “in the inside” of her vagina with his finger
and moved it up and down. Haberman also testified that “the first time was when the sexual
contact occurred and that had awoken [A.B.], and then [A.B.] said he came a second time and
was attempting to take the covers off of her, and that’s when she woke up for the second time,
and then woke her mother.”
Next, the jury heard from Dr. Beth Nauert, a pediatrician who examined A.B. Dr.
Nauert testified that A.B. reported that her mother’s husband’s brother, “not Santiago,” touched
her on her “private part, inside [her] clothes where [her] butt’s at.” On cross-examination, Dr.
Nauert noted that A.B. said “[Castro] tried to touch [her], but [she] woke up” and acknowledged
that she did not know whether there was any contact made “on the second time.”
The last witness was Dr. William Carter, a psychologist specializing in treatment
of sexually abused children. Dr. Carter testified that to a child, “butt” and “private parts” could
mean the same thing and could describe “just the whole region.” Thus, he agreed that A.B.’s
statement to Dr. Nauert that, “He touched me on my private part inside my clothes where my
butt’s at,” was consistent with what A.B. told her mother and Haberman. After considering
A.B.’s behaviors and symptoms, Dr. Carter opined that “the picture presented [here] is not at all
inconsistent with a sexual abuse case.”
At the conclusion of the trial, the jury convicted Castro of both offenses as
charged. The jury assessed punishment, and the district court sentenced Castro in absentia after
determining that Castro had “voluntarily absented himself from [the] proceedings” starting on
the third day of his trial. See Tex. Code Crim. Proc. art. 33.03. He remained at large for almost
4 nine years.3 Castro was extradited to Texas and brought before a Travis County magistrate on
April 15, 2011. The Travis County Sheriff transferred custody of Castro to the Texas
Department of Criminal Justice on May 20, 2011.
The court reporter who had taken the record of voir dire proceedings in Castro’s
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00286-CR
Jaime Villanueva Castro, Appellant
v.
The State of Texas, Appellee
FROM THE 390TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-DC-00-002647, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Jaime Villanueva Castro, who absconded during his trial, on
both counts of a two-count indictment charging him with the first-degree felony offense of
aggravated sexual assault of a young child and the second-degree felony offense of indecency
with a child by sexual contact, committed against eight-year-old A.B. See Tex. Penal Code
§§ 21.11(a)(1), 22.021(a)(1)(B)(i), (2)(B). The jury assessed punishment at fifty years’
imprisonment on the first count and twenty years’ imprisonment on the second. See id. §§ 12.32,
.33. The district court rendered judgments of conviction on the jury’s verdict and ordered that
the sentences run concurrently.
In six issues on appeal, Castro contends that his convictions for both offenses
violate the Fifth Amendment’s prohibition against double jeopardy, that his trial counsel
provided ineffective assistance, and that the court reporter’s destruction of the voir dire record more than fifteen years after the trial entitles him to a new trial. Because of the double-jeopardy
violation, we will vacate the judgment of conviction for indecency with a child by sexual contact
and affirm the judgment of conviction for aggravated sexual assault of a young child.
BACKGROUND
After Castro attended the first and second day of his jury trial in 2002, he failed to
appear for the remainder of his trial, his bond was forfeited, and the district court issued a capias.
Trial continued without Castro. During trial, the jury heard evidence that on November 8, 1999,
when A.B. was eight years old, she lived in an apartment with her two younger brothers, her
mother, mother’s boyfriend, mother’s husband, and one of her husband’s brothers, Santiago.1
On that date, some visitors were also staying at the apartment, including a man nicknamed
“Chaparro” or “Shorty,” and another of husband’s brothers, Castro.2 That night, Castro and the
other men in the apartment played games and drank beer at the kitchen table while A.B., her
brothers, and her mother were sleeping in the bedroom that they shared. During the night, Castro
went into the bedroom and put his finger inside A.B.’s vagina.
A.B., who testified that she was ten years old and in fifth grade at the time of the
2002 trial, also testified specifically that “Jaime [Castro] touched [her]” “[w]ith his finger,” “[o]n
[her] private part,” “down there,” which she acknowledged as her vagina. Using a female doll,
A.B. pointed to the “private part” where he touched her. Further, A.B. clarified that his finger
went inside her private part. Using a male doll, A.B. demonstrated how he came up to her and
1 A.B.’s mother testified that she married Ismael Castro “to fix his papers,” that they resided in separate rooms of the apartment, and that they did not have a physical relationship. Ismael’s brother is the appellant, Jaime Villanueva Castro. 2 We refer to the brothers by their first names for clarity because Ismael, Santiago, and Castro share the same last name.
2 “sort of bent down.” A.B. testified that she was wearing a nightgown, that he touched her
underneath her clothing and underwear, and that he went through the leg part of the underwear to
touch her vagina with his finger. A.B. recalled that afterward, he went into the restroom, and she
fell back to sleep. He later returned to the bedroom, and A.B. testified that “when he tried to do
it the second time, I woke up, and I told my mom.” The prosecutor asked A.B., “Now did you
say he came out a second time?” A.B. responded, “Yes, but he tried to touch me, but I woke up
and told my mom.” The prosecutor asked, “What did you tell your mom?” A.B. replied, “That
he touched me.”
A.B.’s mother testified that A.B. was in third grade and under fourteen years of
age on November 8, 1999. That night, Castro went into the bedroom and woke A.B.’s mother to
borrow a cassette, which she gave to him. Later that night, A.B. woke her mother and said,
“Ismael’s brother, Jaime [Castro] keeps on coming into my room, touching my butt.” A.B.
pointed to Castro when her mother asked who did it. A.B.’s mother confronted Castro, who said
that A.B. was lying and must have been dreaming about him. A.B.’s mother told Castro that she
wanted him out of her house, and when she told him that she was going to call the police, Castro
said “he wasn’t going to leave,” that “[h]e had nothing to hide or he wasn’t scared or something,
but he left the next day.” She testified that after Castro was charged, his brothers Ismael and
Santiago told her boyfriend that they wanted her “to drop the charges, and they offered [her]
money.” On cross-examination, she acknowledged that she did not know for a fact that Castro
had put them up to it.
After A.B.’s mother testified, the jury heard from Camille Haberman, a counselor
who conducted A.B.’s forensic interview. Haberman testified that A.B. said “her mother’s
husband’s brother” went into a bedroom where she was sleeping, touched her vagina—which
3 A.B. called her “private”—with his hand, and went “in the inside” of her vagina with his finger
and moved it up and down. Haberman also testified that “the first time was when the sexual
contact occurred and that had awoken [A.B.], and then [A.B.] said he came a second time and
was attempting to take the covers off of her, and that’s when she woke up for the second time,
and then woke her mother.”
Next, the jury heard from Dr. Beth Nauert, a pediatrician who examined A.B. Dr.
Nauert testified that A.B. reported that her mother’s husband’s brother, “not Santiago,” touched
her on her “private part, inside [her] clothes where [her] butt’s at.” On cross-examination, Dr.
Nauert noted that A.B. said “[Castro] tried to touch [her], but [she] woke up” and acknowledged
that she did not know whether there was any contact made “on the second time.”
The last witness was Dr. William Carter, a psychologist specializing in treatment
of sexually abused children. Dr. Carter testified that to a child, “butt” and “private parts” could
mean the same thing and could describe “just the whole region.” Thus, he agreed that A.B.’s
statement to Dr. Nauert that, “He touched me on my private part inside my clothes where my
butt’s at,” was consistent with what A.B. told her mother and Haberman. After considering
A.B.’s behaviors and symptoms, Dr. Carter opined that “the picture presented [here] is not at all
inconsistent with a sexual abuse case.”
At the conclusion of the trial, the jury convicted Castro of both offenses as
charged. The jury assessed punishment, and the district court sentenced Castro in absentia after
determining that Castro had “voluntarily absented himself from [the] proceedings” starting on
the third day of his trial. See Tex. Code Crim. Proc. art. 33.03. He remained at large for almost
4 nine years.3 Castro was extradited to Texas and brought before a Travis County magistrate on
April 15, 2011. The Travis County Sheriff transferred custody of Castro to the Texas
Department of Criminal Justice on May 20, 2011.
The court reporter who had taken the record of voir dire proceedings in Castro’s
trial on May 6, 2002, destroyed her portion of the record sometime after May 2017. She averred
that it is her practice to retain case records for fifteen years and after that destroy all tapes and
paperwork. She also averred that she retired in 2012 and that no one contacted her about the
record until December 2018, at which point her records had already been destroyed. Castro filed
an unsuccessful pro se application for habeas corpus relief in 2017 alleging ineffective assistance
of counsel. He filed another application for habeas relief in 2018, also alleging ineffective
assistance of counsel, and had counsel appointed to represent him on it. The Court of Criminal
Appeals dismissed that habeas application.
Castro’s sentence was pronounced in his presence at a hearing on April 17, 2019.
See id. art. 42.03, § 1. On June 13, 2019, the district court held an evidentiary hearing on
Castro’s motion for new trial. Defense counsel testified at the hearing but said, “it’s been 17
years,” and “I don’t remember the specifics about the trial.” He also said that “he was limited to
what he could do” during the punishment phase of trial when Castro “didn’t come back.” The
district court denied the motion for new trial by written order. This appeal followed.
3 In 2011, Castro was arrested in Oregon for repeatedly sexually abusing his adolescent stepdaughter. 5 DISCUSSION
Multiple-Punishments Double-Jeopardy Claim
In his first issue, Castro contends for the first time on appeal that his convictions
for both aggravated sexual assault of a child and indecency with a child by sexual contact as
charged in counts one and two violate the constitutional prohibition against double jeopardy
because he was subjected to multiple punishments for the same offense.
The Double Jeopardy Clause of the federal and Texas constitutions, in relevant
part, prohibits multiple punishments for the same offense in a single prosecution. See U.S.
Const. amend. V; Tex. Const. art. 1, § 14; see also Bien v. State, 550 S.W.3d 180, 184 (Tex.
Crim. App. 2018). Preservation of a multiple-punishments double-jeopardy claim for appellate
review generally requires a defendant to object at or before the charge is submitted to the jury.
Gonzalez v. State, 8 S.W.3d 640, 643-46 (Tex. Crim. App. 2000). However, we may consider
the merits of a defendant’s multiple-punishments double-jeopardy claim that is raised for the first
time on appeal “when (1) the undisputed facts show that the double jeopardy violation is clearly
apparent on the face of the record, and (2) enforcement of the usual rules of procedural default
serves no legitimate state interests.” Garfias v. State, 424 S.W.3d 54, 58 (Tex. Crim. App. 2014)
(citing Gonzalez, 8 S.W.3d at 643); see Langs v. State, 183 S.W.3d 680, 682 (Tex. Crim. App.
2006) (“[T]he face of the trial court record must clearly show a double jeopardy violation before
a defendant may successfully raise a ‘multiple punishment’ double jeopardy claim for the first
time on appeal”).
Here, the record reflects that no double-jeopardy claim was presented by defense
counsel during Castro’s trial in 2002 or by appellate counsel in the motion for new trial filed in
6 2019. Because Castro raises his double-jeopardy claim for the first time on appeal, we must
determine whether a double-jeopardy violation is clearly apparent on the face of the record from
his trial. See Garfias, 424 S.W.3d at 58; Langs, 183 S.W.3d at 687. “A multiple-punishments
double-jeopardy violation may arise either in the context of lesser-included offenses (when the
same conduct is punished under both a greater and a lesser-included statutory offense) or when
the same criminal act is punished under two distinct statutory provisions, but the legislature
intended only one punishment.” Aekins v. State, 447 S.W.3d 270, 274 (Tex. Crim. App. 2014);
Garfias, 424 S.W.3d at 58.
The true inquiry in a multiple-punishments case is whether the Legislature
intended to authorize the separate punishments. Garfias, 424 S.W.3d at 58. Whether the
Legislature intended to authorize separate punishments is assessed in two ways as follows:
(1) analyzing the elements of the offenses and (2) identifying the appropriate “unit of
prosecution” for the offenses. Id. When two distinct statutory provisions are at issue, the
offenses must be considered the same under both an “elements” analysis and a “units” analysis
for a double-jeopardy violation to occur. Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App.
2015); see Maldonado v. State, 461 S.W.3d 144, 150-51 (Tex. Crim. App. 2015) (Keller, P.J.,
concurring) (“When the offenses at issue are codified in two distinct statutory provisions, the
offenses must be considered the same under both analyses for a double-jeopardy violation to
occur.”).
1. “Elements” analysis
An “elements” analysis in the two-statute context begins with the test set forth in
Blockburger v. United States, 284 U.S. 299, 304 (1932), which asks “whether each provision
7 requires proof of a fact which the other does not,” Ex parte Benson, 459 S.W.3d at 72. In an
“elements” analysis, a court may not consider the evidence presented at trial. Id. at 72. The
indictment here charged Castro with aggravated sexual assault of young child in Count 1 and
indecency with child by sexual contact in Count 2 occurring on or about the same day. See Tex.
Penal Code §§ 21.11(a)(1), 22.021(a)(1)(B)(i), (2)(B). Count 1 charged Castro with “knowingly
and intentionally caus[ing] the penetration of the female sexual organ of [A.B.], a child younger
than 14 years and not his spouse, by the finger of said JAIME VILLANUEVA CASTRO.”
Count 2 alleged that Castro, “with the intent to arouse and gratify his sexual desire[,] knowingly
and intentionally engage[d] in sexual contact by touching the genitals of [A.B.,] a child younger
than 17 years of age and not his spouse.”
Under an “elements” analysis, the offense of indecency with a child by sexual
contact charged here is incident to and subsumed by the offense of aggravated sexual assault of a
child. See Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004) (noting that record in
that case did not show separate offenses of child-sexual abuse); cf. Maldonado, 461 S.W.3d at
150 (noting that count alleging sexual contact is not subsumed by count alleging penetration
where there is evidence of multiple incidents of both contact and penetration that could have
formed basis for each count); see id. at 150-51 (Keller, P.J., concurring) (applying Blockburger
test to conclude that there were not separate offenses of child-sexual abuse) (citing Evans v.
State, 299 S.W.3d 138, 141-43 (Tex. Crim. App. 2009)). The indecency-with-a-child-by-sexual-
contact offense—Castro’s touching of A.B.’s genitals with intent to arouse and gratify his sexual
desire when A.B. was younger than seventeen—requires no greater proof of facts than that
necessary to establish the aggravated-sexual-assault-of-a-young-child offense—penetration of
A.B.’s sexual organ by Castro’s finger when A.B. was younger than fourteen. See Ochoa v.
8 State, 982 S.W.2d 904, 910 (Tex. Crim. App. 1998) (Keller, P.J., concurring) (noting that
“[p]roving that a child is under age fourteen will necessarily also prove that the child is under
age seventeen”; that “both statutory provisions exclude spouses from their reach”; and that
“touching the female sexual organ with the intent to arouse or gratify sexual desire is a lesser-
included species of conduct of the intentional or knowing penetration of the female sexual
organ”); see also Aekins, 447 S.W.3d at 279 (noting that “[w]hat matters is the sexual assault
upon the victim, not what the defendant used to commit that discrete assault”). But even if the
offense of indecency with a child by sexual contact as charged here is incident to and subsumed
by the offense of aggravated sexual assault of a child under an elements analysis, there is no
double-jeopardy violation if the offenses constitute separate allowable units of prosecution. Ex
parte Benson, 459 S.W.3d at 73; see Maldonado, 461 S.W.3d at 150 (noting that evidence in
case showed multiple instances of conduct); Rubalcado v. State, 424 S.W.3d 560, 571 (Tex.
Crim. App. 2014) (noting that offenses having common elements under Blockburger test are
nevertheless separate if they involve separate allowable units of prosecution). We consider the
allowable unit of prosecution when conducting the “units” analysis.
2. “Units” analysis
In a “units” analysis, we “determine[e] such things as whether there were two
murder victims, whether a victim who was assaulted on Monday was assaulted again on
Tuesday, or whether multiple kinds of sex acts were committed against a victim.” Ex parte
Benson, 459 S.W.3d at 73. The “units” analysis consists of two parts: (1) what the allowable
unit of prosecution is, and (2) how many units have been shown. Id. The first part of the “units”
analysis is purely a question of statutory construction and generally requires ascertaining the
9 focus or gravamen of the offense. Id. at 73-74. The second part of the “units” analysis requires
examination of the trial record, which can include the evidence presented at trial. Id.
We begin our “units” analysis by addressing the gravamen of the two offenses for
which Castro was convicted in this case. “[T]he gravamen of the indecency-with-a-child statute
is the nature of the prohibited conduct, regardless of whether the accused is charged with contact
or exposure[.]” Speights v. State, 464 S.W.3d 719, 722-23 (Tex. Crim. App. 2015) (quoting
Loving v. State, 401 S.W.3d 642, 649 (Tex. Crim. App. 2013)). “[T]he allowable unit of
prosecution for indecency with a child by contact is the commission of the prohibited touching.”
Loving, 401 S.W.3d at 648. The commission of each prohibited act determines how many
convictions may be had for a particular course of conduct. Id. at 649.
“The gravamen of the offense of aggravated sexual assault of a child is
penetration.” Williams v. State, 474 S.W.3d 850, 855 (Tex. App.—Texarkana 2015, no pet.)
(citing Jourdan v. State, 428 S.W.3d 86, 96 (Tex. Crim. App. 2014) (“Thus defined, the
gravamen of the subsection is penetration, not the various and unspecified ‘means’ by which that
penetration may be perpetrated, which are not elemental.”)). “In an aggravated sexual assault of
a child case, there are as many allowable units of prosecution as the evidence shows that the
defendant committed.” Id. That is, one may be prosecuted for as many victims or orifices as the
actor penetrates. Id. (citing Jourdan, 428 S.W.3d at 96 (“Accordingly, a defendant may be
susceptible to prosecution under Section 22.021(a)(1)(A)(i) [statute prohibiting intentionally or
knowingly causing penetration of anus or sexual organ of another person by any means, without
that person’s consent] for as many ‘persons’ as he penetrated during the same transaction, and
for as many statutorily delineated orifices as the evidence may show he penetrated.”)).
10 Under the second part of the “units” analysis, we consider the evidence presented
at trial to determine how many units have been shown and whether the evidence would actually
support conviction and punishment under each theory of the offense. See Stevenson v. State, 499
S.W.3d 842, 851 (Tex. Crim. App. 2016). The undisputed facts in the record of the trial below
do not show multiple instances of Castro’s touching A.B.’s genitals—one of which would be
incident to the penetration of her sexual organ—as necessary to support his convictions for both
aggravated sexual assault of a young child and indecency with a child by sexual contact
committed against the same child.
As we have noted, A.B.’s testimony was that “Jaime [Castro] touched [her]”
“[w]ith his finger,” “[o]n [her] private part,” “down there,” which she acknowledged as her
vagina. A.B. used a female doll to identify the “private part” where he touched her, and she
clarified that his finger was inside her private part. A.B. testified that she was wearing a
nightgown, that he touched her underneath her clothing and underwear, and that he went through
the leg part of the underwear to touch her vagina with his finger. She also stated that she was ten
years old and in fifth grade on the day she testified in 2002. Her testimony describing Castro’s
penetration of her sexual organ supports his conviction for aggravated sexual assault of a young
child. See Tex. Code Crim. Proc. art. 38.07(b)(1) (providing that testimony of sexual-assault
victim who was younger than seventeen at time of assault is sufficient to support conviction);
Tex. Penal Code § 22.021(a)(1)(B)(i), (2)(B) (defining aggravated sexual assault of child
younger than age fourteen); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978)
(holding that victim’s testimony alone is sufficient evidence of penetration); Lee v. State, 186
S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref’d) (“The testimony of the child victim alone
is sufficient to support a conviction for sexual assault.”). Additionally, the counselor who
11 conducted A.B.’s forensic interview testified about A.B.’s description of a sexual assault
involving penetration, namely that “her mother’s husband’s brother” went into a bedroom where
she was sleeping, touched her vagina—which A.B. called her “private”—with his hand, and
went “in the inside” of her vagina with his finger and moved it up and down. Based on the
evidence in the record from trial, the penetration of A.B.’s sexual organ is one allowable unit of
prosecution.
A.B. also testified about events that occurred after the penetration offense. She
stated that after she fell back to sleep, Castro returned to the bedroom and “when he tried to do it
the second time, I woke up, and I told my mom.” A.B. further stated, “[H]e tried to touch me,
but I woke up and told my mom.” A.B.’s mother testified that A.B. woke her and said, “Ismael’s
brother, Jaime [Castro] keeps on coming into my room, touching my butt.” Dr. Carter testified
that to a child, “butt” and “private parts” could mean the same thing and could describe “just the
whole region.” Haberman testified about both events, stating that “the first time was when the
sexual contact occurred and that had awoken [A.B.], and then [A.B.] said he came a second time
and was attempting to take the covers off of her, and that’s when she woke up for the second
time, and then woke her mother.” The pediatrician who examined A.B. acknowledged that she
did not know whether there was any contact made “on the second time” and testified about
A.B.’s report that “[Castro] tried to touch [her], but [she] woke up.” Evidence presented during
trial about this subsequent event describes an incomplete or attempted touching of A.B. that
Castro “tried” to commit, but not the actual commission of a prohibited sexual touching that
would constitute an allowable unit of prosecution for indecency with a child by contact.
Thus, the “units” analysis of this trial record shows that there was only one
allowable unit of prosecution—for the sexual offense involving penetration of the sexual organ
12 of a child—committed against one victim, A.B. The Court of Criminal Appeals has stated that
“multiple convictions for one complete, ultimate sexual assault violate the Double Jeopardy
Clause.” Aekins, 447 S.W.3d at 279. Because the evidence at trial fails to show a sufficient
number of separate instances of sexual abuse that would constitute separate allowable units of
prosecution encompassing both of the sexual offenses charged in the indictment, Castro’s
conviction for both offenses presents a double-jeopardy violation. See Ex parte Benson, 459
S.W.3d at 73; cf. Maldonado, 461 S.W.3d at 150 (noting that evidence in case showed multiple
instances of conduct). Because Castro has shown that a double-jeopardy violation is clearly
apparent on the face of the record and enforcement of the usual rules of procedural default serves
no legitimate state interests, we sustain his first issue. See Garfias, 424 S.W.3d at 58; Langs,
183 S.W.3d at 687; see also Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013)
(noting that although State may have interest in maintaining finality of conviction, there is no
legitimate interest in maintaining conviction where record shows that conviction was obtained in
contravention of constitutional double-jeopardy protections). The proper remedy for
impermissible multiple convictions and punishments is to retain the most serious offense and
vacate the other. Evans, 299 S.W.3d 141. Here, the first-degree felony of aggravated sexual
assault of a young child is a more serious offense than the second-degree felony of indecency
with a child by sexual contact. Accordingly, we vacate Castro’s conviction for the second-
degree felony offense of indecency with a child by sexual contact and proceed to address
Castro’s remaining issues.
13 Ineffective-Assistance-of-Counsel Claim in Motion for New Trial
In his second through fifth issues, Castro contends that his counsel provided
ineffective assistance during trial. When, as here, a defendant raises an ineffective-assistance-of-
counsel claim in a motion for new trial, we review the trial court’s denial of that motion under an
abuse of discretion standard. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). This
deferential standard requires us to view the evidence in the light most favorable to the trial
court’s ruling. Id. We must uphold that ruling if it is within the zone of reasonable disagreement
and reverse that ruling only if no reasonable view of the record could support it. Id.
An ineffective-assistance-of-counsel claim requires the defendant to prove
(1) counsel’s deficient performance and (2) prejudice to the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984); Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). The
deficient-performance component of the Strickland standard requires the defendant to prove by a
preponderance of the evidence that his counsel’s performance fell below the standard of
prevailing professional norms. Strickland, 466 U.S. at 688; Perez, 310 S.W.3d at 893. Our
review of defense counsel’s performance is “highly deferential,” and counsel is afforded a
“strong presumption” that his conduct fell within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689; Perez, 310 S.W.3d at 893. To rebut that presumption, a
defendant’s ineffective-assistance claim must be “firmly founded in the record,” and the record
“must affirmatively demonstrate” the meritorious nature of the claim. Menefield v. State, 363
S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005)).
The prejudice component of the Strickland standard requires proof by a
preponderance of evidence that, but for counsel’s deficiency, there is a reasonable probability—
14 sufficient to undermine confidence in the outcome—that the result of the trial would have been
different. Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 893. “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of the
proceeding.” Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 894. “Failure to make the
required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.” Strickland, 466 U.S. at 700; see Perez, 310 S.W.3d at 893.
1. Hearsay complaint about A.B.’s report to her mother
Castro’s first allegation of ineffective assistance faults defense counsel for not
objecting to hearsay testimony from A.B.’s mother, who recalled A.B. saying that Castro kept
coming to her room and that “he touched her butt.” Castro contends that an objection was
necessary and that this statement was not an outcry of abuse because it “was not detailed enough
to describe a sexual assault offense.”
However, Castro failed to show that but for the lack of objection to this testimony
there is a reasonable probability that the outcome of the trial would have been different. See
Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 893. Erroneous admission of testimony is
harmless if the same or similar evidence is admitted without objection at another point in the
trial. Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998). By the time A.B.’s
mother testified, the jury had already heard A.B.’s detailed, firsthand account about what
transpired both times when she was awakened by Castro in the bedroom. As we have noted,
A.B. testified about Castro’s penetration of her sexual organ and stated her age and grade in
school. Immediately after describing the event when his finger was “inside” her private part,
A.B. stated that she “fell back to sleep, and when he tried to do it the second time, I woke up, and
15 I told my mom.” Because evidence similar to—and some more detailed than—the testimony
from A.B.’s mother was admitted without objection beforehand, Castro failed to make the
necessary showing of prejudice as to this hearsay complaint. See id.
2. Hearsay complaint about offer of money to drop charges
Castro’s second allegation of ineffective assistance faults defense counsel for not
objecting to hearsay testimony from A.B.’s mother when she stated that Castro’s brothers had
communicated to her boyfriend an offer of money for her to drop the charges. Texas Rule of
Evidence 802 prohibits hearsay except as provided by statute or other rule prescribed pursuant to
statutory authority. See Tex. R. Evid. 802. Hearsay is defined as a statement, other than one
made by the declarant while testifying at the current trial or hearing, that a party offers in
evidence to prove the truth of the matter asserted in the statement. Id. R. 801(d). Thus, a
statement is not hearsay if it is not offered to prove the truth of the matter asserted. Guidry v.
State, 9 S.W.3d 133, 152 (Tex. Crim. App. 1999); see Tex. R. Evid. 801(d)(2). That is, “a
statement is not hearsay if its relevancy does not hinge on its truthfulness.” Johnson v. State, 425
S.W.3d 344, 346 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d).
The State points out that the testimony about the Castro brothers’ communication
of the offer to mother’s boyfriend was not offered to prove that they would actually pay her to
drop the case; rather, it was evidence from which the jury could infer a consciousness of guilt.
“Efforts of third parties who attempt to tamper with witnesses at the defendant’s behest may be
admissible as evidence of consciousness of guilt.” State v. Villegas, 506 S.W.3d 717, 749 (Tex.
App.—El Paso 2016, no pet.); see Gonzalez v. State, 117 S.W.3d 831, 842 (Tex. Crim. App.
2003) (noting that allegation that defendant, through his attorney, attempted to bribe witness for
16 favorable testimony would support inference that such conduct demonstrated defendant’s
consciousness of guilt for charged crime). Counsel is not ineffective if he refrains from
objecting to admissible testimony. Ex parte Jimenez, 364 S.W.3d 866, 887 (Tex. Crim. App.
2012); Agbogwe v. State, 414 S.W.3d 820, 835 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
(concluding that defense counsel’s lack of objection to evidence that defendant’s friends asked
victim to drop charges and ignore subpoena and offered to pay her fines for noncompliance with
subpoena did not constitute ineffective assistance of counsel because such evidence was
admissible as consciousness of guilt).
Castro replies that the State did not limit its use of this testimony to showing
consciousness of guilt but referenced it during closing arguments, specifically when the
prosecutor remarked that Castro’s family “tried to buy this case,” were “trying to get her to drop
the charges,” and “tried to tamper with her testimony.” Castro notes that a court considers
arguments that a party made in the trial court when reviewing the party’s claim on appeal that it
did not offer testimony for the truth of the matter asserted. But here, the State presented no
argument to the trial court supporting the admissibility of testimony about an offer of money to
A.B.’s mother to drop the charges because there was no objection requiring such response. Cf.
Langham v. State, 305 S.W.3d 568, 580-81 (Tex. Crim. App. 2010) (noting that State did not
argue, in response to defendant’s hearsay and Confrontation Clause objections during trial, that
confidential informant’s out-of-court statements were not offered for truth of matter asserted).
Even so, Castro failed to show that but for the omitted objection to the
complained-of testimony there is a reasonable probability that the outcome of the trial would
have been different. See Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 893. Aside from
A.B.’s mother’s testimony about the communication from Castro’s brothers to her boyfriend
17 about an offer of money for her to drop the charges, the jury heard other evidence about Castro’s
consciousness of guilt. A.B.’s mother testified that after she confronted Castro—who claimed
that A.B. was lying, that he was not leaving, and that he had nothing to hide—he left. She
further testified that Castro’s family was not helpful to her or the police, who were looking for
Castro for “quite some time.” See Devoe v. State, 354 S.W.3d 457, 470 (Tex. Crim. App. 2011)
(noting that evidence of flight is admissible as circumstance from which inference of guilt may
be drawn). Moreover, the jury saw that Castro was missing from the courtroom at the beginning
of the third day of trial, and they learned that he was absent by choice when the district court
informed them that the trial would resume because “the law provides when a person has
voluntarily absented himself from proceedings, we can proceed.” As this Court has noted,
consciousness of guilt “is perhaps one of the strongest kinds of evidence of guilt.” Torres v.
State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.). Because the jury had other
evidence tending to demonstrate consciousness of guilt besides the complained-of hearsay
testimony from A.B.’s mother about an offer of money for her to drop the charges, Castro failed
to meet his burden of showing prejudice from admission of her testimony.
3. Complaint that expert opined on truthfulness of abuse accusation
Castro’s third allegation of ineffective assistance faults defense counsel for not
objecting to the portion of Dr. Carter’s testimony in which he stated that, from what he read in a
report from the child-advocacy center, A.B. “made some pretty specific statements that give you
confidence that what she’s saying is accurate” and that “those are details that . . . she wouldn’t
know to fake or to talk about unless something like that quite likely happened.” Castro contends
18 that Dr. Carter’s testimony was tantamount to testifying that A.B. told the truth when she
accused Castro of assaulting her.
Expert testimony is inadmissible when it decides an ultimate fact for the jury,
such as a direct opinion on the truthfulness of a child complainant’s allegations. See Schutz v.
State, 957 S.W.2d 52, 73 (Tex. Crim. App. 1997) (concluding that expert witnesses provided
inadmissible testimony that it was “less likely” that child complainant had been manipulated into
making her allegations and that her allegations were not result of fantasy); Yount v. State, 872
S.W.2d 706, 711 (Tex. Crim. App. 1993) (“[E]xpert testimony that a particular witness is truthful
is inadmissible under Rule 702.”). A “fine but essential” line exists between helpful expert
testimony and impermissible comments on credibility. Schutz, 957 S.W.2d at 60. Thus, expert
testimony was inadmissible and counsel was found ineffective for failing to object after a trial
where the child did not testify and multiple experts were asked to explain and comment directly
on factors they used in determining whether a child was telling the truth. See Sessums v. State,
129 S.W.3d 242, 248 (Tex. App.—Texarkana 2004, pet. ref’d) (noting also that State’s closing
argument specifically discussed that child “must not be a liar” because experienced experts
testified and because “[e]very one of them said the kid’s telling the truth, he done it. You have
got to find that kid is a liar and all those people are fools and don’t know what they are doing in
order to find him not guilty.”). Likewise, counsel was found ineffective in another case for
failing to object during a trial where the jury was presented with “extensive, inadmissible
testimony” from three witnesses about the truth of the child’s sexual-assault claim, including a
witness who stated that she was “particularly adroit” at determining whether child’s claim was
“made-up” and that “family courts tend to assign me very difficult cases that have been seriously
contaminated so I can discover what the truth is in those matters.” Miller v. State, 757 S.W.2d
19 880, 883, 885 (Tex. App.—Dallas 1988, pet. ref’d). Such direct opinions on truthfulness are
distinct from expert testimony concerning the common behavioral characteristics of children
who have been abused, which may be admissible. See Yount, 872 S.W.2d at 708-09 (citing Cohn
v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993)); Jessop v. State, 368 S.W.3d 653, 691
n.61 (Tex. App.—Austin 2012, no pet.).
Here, as the State notes, Dr. Carter’s testimony was provided in the context of
describing more generally, outcries containing “details that a child would not know other than
. . . having been involved in an act of abuse, touches, smells, things of that nature.” After
considering A.B.’s behaviors and symptoms, Dr. Carter opined that “the picture presented [here]
is not at all inconsistent with a sexual abuse case.” Even if defense counsel had objected at trial
to this testimony, the district court could have determined, within the zone of reasonable
disagreement, that the complained-of testimony from this one witness was distinguishable from
the extensive evidence provided by multiple witnesses in Sessums and Miller. See Cavett v.
State, No. 07-17-00141-CR, 2018 Tex. App. LEXIS 8498, at *10 (Tex. App.—Amarillo Oct. 17,
2018, no pet.) (mem. op., not designated for publication) (noting that Sessums and Miller “have
unique characteristics” and “are decisions of sister courts that do not include the Third Court of
Appeals”).
Unlike the attorneys in those cases, defense counsel here elicited testimony from
the State’s expert that challenged A.B.’s credibility. On cross-examination, Dr. Carter
acknowledged that he had never interviewed A.B., that his impressions were based on interviews
with children like A.B. but not on any specific information from her, and that his impressions
could be wrong. Additionally, Dr. Carter admitted that he could not rule out whether A.B.’s
allegations were motivated by “secondary gain,” which he described as a child’s recognition that
20 “when they talk about this . . . whatever they say, they do get the kind of attention, affection,
stroking, whatever it is that is making them feel better, and that, in and of itself, can produce
more of the same.” Building on that admission, defense counsel asked, “So there is the
possibility that secondary gain could have been one of the reasons why [A.B.] gave another
person more information or different information than the first?” Dr. Carter responded, “Yes,
I’ll acknowledge that.” Significantly, defense counsel also elicited Dr. Carter’s admission that
he had no knowledge of whether Castro committed the abuse or whether the abuse had occurred.
Thus, the record reflects that the complained-of testimony from Dr. Carter was
but a small portion of a larger amount of evidence that was presented to the jury and that could
have been used in determining A.B.’s credibility. See Barshaw v. State, 342 S.W.3d 91, 96 (Tex.
Crim. App. 2011) (“Even in cases in which credibility is paramount, Texas courts have found
harmless error when the inadmissible expert testimony was only a small portion of a large
amount of evidence presented that the jury could have considered in assessing the victim’s
credibility.” (citing Schutz, 63 S.W.3d at 446)). Assuming that the better strategy would have
been for defense counsel to object to Dr. Carter’s testimony, when assessed within the overall
record of this trial, Castro has not shown that but for the omitted objection to the complained-of
testimony from Dr. Carter there is a reasonable probability that the outcome of the trial would
have been different. See Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 893.
4. Complaints that witnesses and mental-health history were not presented
Castro’s fourth allegation of ineffective assistance faults defense counsel for not
investigating “mitigating evidence” and calling certain witnesses during the punishment phase.
Specifically, Castro complains that defense counsel did not call two of Castro’s siblings and
21 Castro’s former personal-injury attorney to testify and that defense counsel did not know about
Castro’s past treatment for depression and did not investigate whether Castro had additional
mental-health issues.
The Strickland standard does not require defense counsel to present mitigating
evidence during sentencing in every case. Wiggins v. Smith, 539 U.S. 510, 533 (2003); see
Strickland, 466 U.S. at 689 (addressing “constitutionally protected independence of counsel”).
When considering whether defense counsel conducted an adequate investigation for potential
mitigating evidence, we focus on whether the investigation supporting the decision not to
introduce mitigating evidence of the defendant’s background was reasonable. Goody v. State,
433 S.W.3d 74, 80 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); see Wiggins, 539 U.S.at
522-23. Defense counsel’s decision about the necessary amount of investigation is afforded a
“heavy measure of deference” and assessed in light of all the circumstances to determine whether
reasonable professional judgment would support the decision. See Strickland, 466 U.S. at 691.
A defendant’s ineffective-assistance-of-counsel claim complaining of an uncalled witness must
include a showing that the witness’s testimony would have benefited the defense. Ex parte
Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007); Ex parte White, 160 S.W.3d 46, 52 (Tex.
Crim. App. 2004). An attorney’s decision not to present certain witnesses during the punishment
phase may be a strategically sound one when it is based on a determination that the witnesses’
testimony could be harmful to the defendant. Shanklin v. State, 190 S.W.3d 154, 164 (Tex.
App.—Houston [1st Dist.] 2005, no pet.); see Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim.
App. 2002) (noting that “defense counsel could have reasonably determined that the potential
benefit of additional witnesses or evidence was outweighed by the risk of unfavorable counter-
testimony”).
22 Here, during the hearing on the motion for new trial, Castro’s brother Ismael
testified that on the night in question he and Santiago went to sleep before Castro and Shorty.
The next morning, Ismael was awakened by A.B.’s mother and was told about the accusations
against Castro. Ismael said that if called at trial, he would have testified that he “didn’t see
anything” and that “[i]t could have been Shorty.” Further, Ismael would have testified that
Castro treats children well, although he admitted knowing that after this case, Castro was
arrested in Oregon for sexually abusing his teenage stepdaughter. Ismael denied offering money
to A.B.’s mother to drop the charges in the case.4
Next, Castro’s sister, Oralia Castro Villanueva, testified. She said that she had
accompanied Castro to court twice but had not been asked to testify in support of him. If called,
Villanueva said that she would have testified that Castro treated children well. She admitted
knowing about Castro’s subsequent case in Oregon involving similar allegations, but she was
unaware of whether that case had been finalized.
Castro also testified at the hearing on his motion for new trial. He recalled that
before the trial in this case, he had a car accident and hired “Mike Dye” to represent him. Castro
stated that “back then,” he was given antidepressant medication to treat his depression. Castro
stated that defense counsel was unaware of that. Castro did not explain how or if his condition
or medications “back then” affected him during the timeframe of the offenses that he was
convicted of committing against A.B.
Michael Dye, an Oregon attorney, testified by Skype videoconference at the
hearing. He stated that he had previously represented Castro in two personal-injury matters,
4 However, Ismael was not asked if he communicated such an offer to A.B.’s mother’s boyfriend.
23 including an automobile accident in 1994. Dye said that Castro had seen a clinical psychologist,
and that Dye “participated in” Castro seeing that psychologist. Dye also said that in 2002, he
provided Castro with a referral to a criminal attorney. Dye opined that Castro “was a person of
character” and said that Castro’s conviction for aggravated sexual assault of a child in this case
did not change his opinion about him.
Defense counsel also testified at the hearing on the motion for new trial. He
discussed considerations for his decision-making during the punishment phase, noting his
concern that testimony from Castro’s brothers “m[ight] not have played well for the jury” given
the brothers’ efforts “to buy off” A.B.’s mother. He testified that he wanted to avoid “that issue
being brought back up,” especially because he had already elicited testimony from A.B.’s mother
on cross-examination “indicat[ing] that [Castro] had nothing to do with it.” Additionally,
defense counsel testified that he “was limited to what he could do” during the punishment phase
of trial when Castro “didn’t come back.”
Based on the foregoing evidence and considering the high risk that the State
would delve into the allegation that Castro’s brothers attempted to “buy off” A.B., defense
counsel’s decision not to call Ismael was reasonable and strategically sound.5 See Shanklin, 190
S.W.3d at 164; see also Bone, 77 S.W.3d at 835. Further, as to the complaint that defense
counsel did not know about Castro’s past treatment for depression and did not investigate
whether Castro had additional mental-health issues, we note that nothing in the record shows that
Castro was experiencing or had a history of some medical or mental-health impairment, or that
5 The former lead prosecutor in Castro’s case testified at the hearing that if Castro’s brothers had been called during punishment, she “absolutely” would have questioned them as to Castro’s whereabouts and a conversation they may have had with A.B.’s mother because “as a prosecutor you wait for those moments.” When the judge asked whether defense counsel had done a good job representing Castro, the former prosecutor stated her belief that he did. 24 he disclosed such matters to defense counsel. See Purchase v. State, 84 S.W.3d 696, 700-01
(Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (rejecting defendant’s claim of ineffective
assistance and declining to hold that defense counsel must always ask defendants about their
mental-health history, even when there are no indicators of such issues). Thus, we cannot
conclude that the lack of inquiry into those matters was outside the scope of reasonable
professional judgment. See Strickland, 466 U.S. at 691.
Moreover, Castro failed to show that the proffered testimony from any of these
uncalled witnesses would have benefited his defense. See Ex parte Ramirez, 280 S.W.3d at 853;
Ex parte White, 160 S.W.3d at 52. Ismael’s testimony that he “didn’t see anything” and both
siblings’ claims that Castro treated children well would likely have been viewed with skepticism
by the jury that had just convicted him of sexual offenses against an eight-year-old child. The
jury might have perceived Castro’s family members as complicit in his absence from trial,
particularly after hearing A.B.’s mother testify that Castro’s family was not helpful to her or to
the police, who had to look for Castro for “quite some time.” And although Castro contends that
the jury was deprived of information that his family might have provided about his employment
status, his family and community relationships, and his moral character, the record reflects that
Ismael and Villanueva provided none of that information in their proffered testimony at the
hearing. Dye testified about Castro’s employment and mental-health treatment but only around
1994, during the time when Castro was his client. Finally, as the State suggests, calling the
family members who might have been perceived as assisting Castro with his absence from trial
or producing evidence of treatment for depression following a 1994 car accident as justification
or mitigation of Castro’s commission of sexual offenses against a child in 1999 had the potential
to backfire and harm Castro during sentencing.
25 After assessing all the circumstances and affording a “heavy measure of
deference” to defense counsel’s decision about the necessary amount of investigation, we
conclude that reasonable professional judgment would support counsel’s decision not to pursue
or present the evidence summarized above. See Strickland, 466 U.S. at 691. Having evaluated
counsel’s effectiveness by looking to the totality of his representation during trial, see Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999), we conclude that as to these identified
allegations of ineffective assistance, Castro failed to: (1) overcome the strong presumption that
his counsel’s decision not to pursue or present the evidence summarized above fell within the
wide range of reasonable professional assistance; and (2) show that his counsel’s performance
prejudiced his defense and deprived him of a fair trial given a reasonable probability of a
different result if counsel had made other decisions about the usefulness and risks of presenting
that evidence. See Strickland, 466 U.S. at 700; see also Perez, 310 S.W.3d at 893. Additionally,
after considering the evidence in the light most favorable to the district court’s ruling, we
conclude that a reasonable view of the record supports the denial of Castro’s motion for new trial
alleging ineffective assistance of counsel, and thus, that this ruling was not outside the zone of
reasonable disagreement. See Burch, 541 S.W.3d at 820. We overrule Castro’s second through
fifth issues.
Destruction of Voir-Dire Record
In his sixth and final issue, Castro contends that the court reporter’s destruction of
the voir dire portion of the record entitles him to a new trial under Texas Rule of Appellate
Procedure 34.6(f) and the Due Process Clause of the U.S. Constitution.
26 Under Rule 34.6(f), a party is entitled to a new trial under the following
circumstances:
(1) if the appellant has timely requested a reporter’s record;
(2) if, without the appellant’s fault, a significant exhibit or a significant portion of the court reporter’s notes and records has been lost or destroyed or—if the proceedings were electronically recorded—a significant portion of the recording has been lost or destroyed or is inaudible;
(3) if the lost, destroyed, or inaudible portion of the reporter’s record, or the lost or destroyed exhibit, is necessary to the appeal’s resolution; and
(4) if the lost, destroyed or inaudible portion of the reporter’s record cannot be replaced by agreement of the parties, or the lost or destroyed exhibit cannot be replaced either by agreement of the parties or with a copy determined by the trial court to accurately duplicate with reasonable certainty the original exhibit.
Tex. R. App. P. 34.6(f) (emphasis added). As this Court has noted, if appellant “bears some
blame or culpability for the destruction of the [court reporter’s] notes, he is not ‘without fault’
and is not entitled to relief.” Branch v. State, No. 03-07-00118-CR, 2008 Tex. App. LEXIS
3569, at *10 (Tex. App.—Austin May 16, 2008, pet. ref’d) (mem. op., not designated for
publication). Castro acknowledges this authority but contends that in criminal cases, Texas Rule
of Appellate Procedure 13.6 also applies, which states in relevant part:
When a defendant is convicted and sentenced, . . . and does not appeal, the court reporter must—within 20 days after the time to perfect the appeal has expired— file the untranscribed notes or the original recording of the proceeding with the trial court clerk. The trial court clerk need not retain the notes beyond 15 years of their filing date.
Tex. R. App. P. 13.6; see Banks v. State, 312 S.W.3d 42, 45 (Tex. App.—Dallas 2008, pet. ref’d)
(concluding that Rule 13.6 applied because defendant failed to file notice of appeal or otherwise
27 request retention of record until after deadline imposed by Rule 13.6 had passed and that court
reporter was required to file untranscribed notes with court clerk to be retained for fifteen years).
The court reporter in this case never filed any untranscribed notes or original recording of the
voir dire record with the district clerk. However, consistent with her own practice, the court
reporter retained the voir dire record herself until “after May 2017,” more than fifteen years after
Castro’s trial. The record reflects that the district clerk provided Castro with a copy of his
indictment and judgments of conviction on March 15, 2012, and that on November 12, 2012,
Castro informed the district clerk, “I will contact the reporter.” The district clerk followed up by
providing Castro with the court reporter’s contact information. However, the court reporter
averred that no one contacted her about the record until 2018.
Castro contends that he “could not appeal the trial court’s judgment of
conviction” before his sentencing. Further, he contends that because Texas Rule of Appellate
Procedure 20.2 allows an appellant to file a motion requesting preparation of the appellate record
without charge “within the time for perfecting an appeal,” the rule “prevented” him from
requesting a no-cost record until after he had been sentenced. We disagree.
“Within the time for perfecting appeal” refers to the period before the filing
deadline for an appeal expires and necessarily includes a prematurely filed notice of appeal. See
Tex. R. App. P. 20.2, 27.1(b); see also Jones v. State, No. 05-14-00243-CR, 2015 Tex. App.
LEXIS 2418, at *7 (Tex. App.—Dallas Mar. 13, 2015, no pet.) (mem. op., not designated for
publication) (affirming denial of defendant’s request for free appellate record filed after
expiration of “time for perfecting appeal,” which was untimely). Rule 27.1(b) states, in relevant
part, that in criminal cases “a prematurely filed notice of appeal is effective and deemed filed on
the same day, but after, sentence is imposed or suspended in open court.” Tex. R. App. P.
28 27.1(b) (stating also that notice of appeal is not effective if it is filed before trial court makes
finding of guilt or receives jury verdict). Thus, while a late notice of appeal fails to invoke the
jurisdiction of a court of appeals, under Rule 27.1(b), an early notice of appeal may be
considered timely. Smith v. State, 559 S.W.3d 527, 531 (Tex. Crim. App. 2018). Rule 27.1(b)
“allows a notice filed between conviction and sentencing to perfect an appeal of both conviction
and sentencing.” Id. at 534 (comparing this Texas rule with federal rule “intended to protect
unskilled litigant who files notice of appeal from a decision that he reasonably but mistakenly
believes to be final”).
We have likewise determined that in criminal cases, a prematurely filed notice of
appeal is one that is filed during the time period after the jury’s verdict and before sentence is
imposed in open court. Franks v. State, 219 S.W.3d 494, 497 (Tex. App.—Austin 2007, pet.
ref’d); see Tex. R. App. P. 27.1(b); see also 4 Texas Criminal Practice Guide § 81.02 (2020)
(referencing circumstance where defendant is not sentenced properly before taking his appeal
and noting that trial court lacks jurisdiction to resentence defendant while his appeal is pending
and mandate has not yet issued from appellate court). Thus, contrary to Castro’s contention, he
could have filed an appeal of his conviction before he had been sentenced in open court, and that
premature filing would have become effective and deemed filed on the day that his sentence was
subsequently imposed. See Tex. R. App. P. 27.1(b). Similarly, if Castro had filed a motion
requesting preparation of a free appellate record before the expiration of his notice-of-appeal
deadline, that motion would have been filed “within the time for perfecting an appeal.” See id.
R. 20.2.
Here, the record reflects that Castro absconded from his trial in 2002. The district
court found that Castro had voluntarily absented himself from trial. Castro remained a fugitive
29 for almost nine years until his extradition to Texas in 2011, causing a delay in the oral
pronouncement of his sentence in his presence. Notably, Castro does not contend that under
these circumstances he is entirely blameless for the court reporter’s destruction of the voir dire
record. See id. R. 34.6(f)(2); Branch, 2008 Tex. App. LEXIS 3569, at *10. In similar
circumstances, Texas courts have held that a defendant bears some responsibility when a record
becomes unavailable years after the defendant became a fugitive. See Weeks v. State, 521
S.W.2d 858, 862 (Tex. Crim. App. 1975) (concluding that because defendant became fugitive
from justice for two years, he bore “responsibility for the unavailability of the transcription of the
court reporter’s notes” and was in in “no position to now complain” of their unavailability);
Delasantos v. State, 673 S.W.2d 634, 635 (Tex. App.—Waco 1984, no pet.) (“Defendant cannot
assert that the statement of facts is unavailable through no fault of her own when she remained a
fugitive from justice for over 4 years.”); see also Branch, 2008 Tex. App. LEXIS 3569, at *4
(noting that defendant who fled jurisdiction and remained at large for over twenty years had set
in motion chain of events leading to destruction of court reporter’s notes over fifteen years later).
Because Castro failed to show that the destruction of the voir dire portion of the reporter’s record
was “without [his] fault,” we conclude that he is not entitled to a new trial under Rule 34.6. See
Tex. R. App. P. 34.6(f)(2); Branch, 2008 Tex. App. LEXIS 3569, at *16 (conclusion that
defendant was not entirely without fault for absence of record was “decisive of his claim for
relief under appellate rule 34.6(f)”). Further, we conclude that an adequate and effective process
was available to Castro under the established authorities setting forth a criminal defendant’s right
to file an appeal. See Evitts v. Lucey, 469 U.S. 387, 392 (1985) (noting that Fourteenth
Amendment to United States Constitution guarantees defendant pursuing direct appeal “certain
minimum safeguards necessary to make appeal ‘adequate and effective’”).
30 A reasonable view of the record supports the district court’s denial of Castro’s
motion for new trial complaining of destruction of the voir dire record; thus, that ruling was not
outside the zone of reasonable disagreement. See Burch, 541 S.W.3d at 820. Accordingly, we
overrule Castro’s sixth issue.
CONCLUSION
Because of the double-jeopardy violation that is clearly apparent from the face of
the record, we vacate Castro’s conviction on Count 2 for the second-degree felony offense of
indecency with a child by sexual contact and the related prison sentence, and otherwise affirm
the district court’s judgment of conviction on Count 1 for the first-degree felony offense of
aggravated sexual assault of a young child.
__________________________________________ Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Triana
Affirmed in Part; Vacated in Part
Filed: April 30, 2021
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Jaime Villanueva Castro v. the State of Texas, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jaime-villanueva-castro-v-the-state-of-texas-texapp-2021.