Opinion issued June 15, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00485-CR ——————————— ROY CASTILLO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas Trial Court Case No. 1577118
MEMORANDUM OPINION
A jury convicted appellant, Roy Castillo, of the third-degree felony offense of
escape from custody while charged with a felony offense, and it sentenced him to
the minimum twenty-five years’ confinement under the habitual felony offender
statute. See TEX. PENAL CODE §§ 38.06(a)(1), (c)(1), 12.42(d). In two issues, Castillo argues that: (1) the trial court abused its discretion under Texas Rules of Evidence
403 and 404 in admitting evidence of extraneous offenses at the guilt-innocence
phase of his trial; and (2) trial counsel was ineffective for failing to object to
admission of the extraneous offense evidence.
We affirm.
Background
Castillo was indicted for the third-degree felony offense of escape from
custody while charged with a felony offense, namely robbery. See TEX. PENAL CODE
§ 38.06(a)(1), (c)(1). At trial, Houston Police Department (HPD) Officer K. Tabora
testified that he and his partner, T. Williams, escorted Castillo, who was in custody,
to the hospital for injuries and guarded Castillo while there. While at the hospital,
Castillo asked to use the restroom. Tabora walked Castillo, who was handcuffed and
limping from his injuries, down the hall to the restroom. Before Castillo went inside,
Tabora uncuffed Castillo’s hands. Upon emerging from the restroom, Castillo
sprinted away. Tabora pursued Castillo, telling him to stop running. Officer
Williams also chased after Castillo, and the officers followed him into a hospital
parking garage. Tabora never lost sight of Castillo, who was caught shortly thereafter
in the parking garage.
Prior to trial, Castillo filed a motion in limine. The motion targeted, in relevant
part, any “direct or indirect evidence related to the Defendant’s prior criminal
2 history”; any “direct or indirect evidence of extraneous offenses listed in the State’s
‘Notice of Intention to Use Evidence of Prior Convictions and Extraneous Offenses’
including pending offenses”; any “testimony by state’s witnesses that Defendant’s
warrant was for the offense of Robbery”; and any “mention of the nature of the
felony warrant that was pending[.]” The motion stated,
The above matters [] should not be mentioned unless and until the State’s attorney first approaches the bench and makes known to the Court and the Defendant, outside the presence of the jury, that she intends to offer such proof, thus permitting the jury to be retired and the evidence and objections heard, and the Court to rule on the admissibility of such evidence.
At the beginning of the guilt-innocence phase of trial, the trial court heard
Castillo’s motion in limine. Defense counsel stated that “what we want to limine out
is the indictment,” such that the word “robbery” would not be used when the State
read the indictment.1 Defense counsel argued that, to satisfy Penal Code section
38.06, the State needed to show only that there was a felony warrant pending when
Castillo escaped from custody but did not need to show the nature of the underlying
felony offense. See TEX. PENAL CODE § 38.06(a)(1) (“A person commits an offense
if the person escapes from custody when the person is . . . under arrest for, lawfully
1 The indictment alleged that “in Harris County, Texas, ROY CASTILLO, hereafter styled the Defendant, heretofore on or about January 17, 2018, did then and there unlawfully, intentionally and knowingly escape from the custody of K. Tabora, a peace officer employed by Houston Police Department, while charged with a felony offense, namely, Robbery.”
3 detained for, charged with, or convicted of an offense . . . .”). According to defense
counsel, revealing the nature of the underlying felony was irrelevant under Texas
Rule of Evidence 401 and unduly prejudicial under Texas Rule of Evidence 403.
For these same reasons, defense counsel further argued that the State should
“admonish their officers” not to “say the nature of that warrant while testifying to
the jury.” The prosecutor agreed that “it’s good to give an admonishment to the
officers, telling them not to talk about the robbery or not. It’s always good to remind
them.” The trial court verbally prohibited the State and its witnesses from using the
word “robbery,” although it allowed reference to a felony warrant generally. The
court further granted the State’s request to subsequently seek a ruling if the robbery
became relevant. The court also entered a written order granting Castillo’s motion
in limine.
The State did not mention robbery when it read the indictment. However, on
direct examination, Tabora testified that two officers escorted Castillo to the
hospital, instead of the typical single-officer escort, “[b]ecause Roy Castillo had
shown that he was a flight risk because he had previously evaded on foot.” The State
did not follow up on Tabora’s statement but instead moved on to the events that had
occurred at the hospital. Defense counsel did not object to this statement.
After Tabora testified, the State called HPD Officer C. Farmer, who arrested
Castillo for open warrants and took him into custody prior to Tabora transporting
4 Castillo to the hospital. Just as Farmer began his testimony and introduced himself,
the State said, “Just to be clear, I know that my colleague here approached you. Just
to be clear, what she told you was don’t mention anything about the actual offense
with the robbery; is that right?” Farmer responded, “That’s correct.” Defense
counsel did not object to the State’s comment. Robbery was not mentioned again
during the guilt-innocence phase of trial.
The jury convicted Castillo of escaping from custody. At Castillo’s election,
the jury considered his punishment. It answered true to two enhancement
paragraphs: the first for a conviction of the felony offense of robbery and the second
for a subsequent conviction of the felony offense of tampering with evidence. The
jury sentenced Castillo to the minimum twenty-five years’ confinement under the
habitual felony offender statute. See TEX. PENAL CODE §§ 38.06(c)(1), 12.42(d).
Castillo did not file a motion for new trial or any other post-judgment motion. This
appeal followed.
Evidence of Extraneous Offenses
In his first issue, Castillo contends that the trial court abused its discretion by
admitting (1) Tabora’s testimony that “Castillo had shown that he was a flight risk
because he had previously evaded on foot”; and (2) the following exchange between
the prosecutor and Farmer:
Q. Thank you. Just to be clear, I know that my colleague here approached you. Just to be clear, what she told you was don’t 5 mention anything about the actual offense with the robbery; is that right? A. That’s correct.
Castillo contends that the statements were inadmissible under Texas Rules of
Evidence 403 and 404(b).
To preserve error for appellate review, a party must make a timely and specific
objection or motion at trial, and there must be an adverse ruling by the trial court.
TEX. R. APP. P. 33.1(a); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App.
2008). Failure to preserve error at trial waives a later assertion of that error on appeal,
including complaints regarding the admissibility of evidence. Fuller, 253 S.W.3d at
232; Saldano v. State, 70 S.W.3d 873, 889 & nn.73–74 (Tex. Crim. App. 2002)
(citations omitted).
Significantly, Castillo concedes that defense counsel did not object to the
statements in the trial court. He nevertheless attempts to excuse this failure to object
on the ground that the court was “well aware” of his complaints from the motion in
limine and his counsel’s arguments to the court on that motion.
Castillo has not preserved error concerning those statements for appellate
review. “It is axiomatic that motions in limine do not preserve error.” Thierry v.
State, 288 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (quoting
Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d)). “A
motion in limine, whether granted or denied, preserves nothing for appellate
6 review.” Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007). That is
because a motion in limine is a “preliminary matter.” Fuller, 253 S.W.3d at 232. A
grant of a motion in limine “is not a ruling that excludes evidence; rather, it merely
requires the parties to approach the trial court for a definitive ruling before
attempting to put on evidence within the scope of the motion in limine order.”
Thierry, 288 S.W.3d at 87. Such a ruling is, “by its nature, subject to reconsideration
by the court throughout the course of the trial.” Norman v. State, 523 S.W.2d 669,
671 (Tex. Crim. App. 1975). To preserve error on an issue subject to a motion in
limine, a party must make an objection if and when the issue is raised during trial.
Fuller, 253 S.W.3d at 232.
Thus, neither the order granting Castillo’s motion in limine nor the arguments
advanced in support of that motion sufficed to preserve error. See id. The trial court’s
order simply barred reference to the subjects at issue “unless and until” the State’s
attorney first approached the bench and procured a ruling from the court “on the
admissibility of such evidence.” See Thierry, 288 S.W.3d at 87. It was not a final
ruling on the admissibility of evidence.
That is not to say that the grant of a motion in limine is of no consequence. If
a party violates a motion in limine, then the “trial court may apply the sanctions of
contempt or take other appropriate action.” Brazzell v. State, 481 S.W.2d 130, 131
(Tex. Crim. App. 1972). But any remedy for violating a motion in limine lies with
7 the trial court alone. Id.; Thierry, 288 S.W.3d at 87. Appellate courts may only
review error regarding the admission of evidence when properly preserved by timely
objection. Brazzell, 481 S.W.2d at 131. The order on the motion in limine did not
relieve Castillo of the requirement to timely object to evidence of prior extraneous
offenses when it was offered during trial. See Fuller, 253 S.W.3d at 232.
Here, the record confirms that defense counsel did not object when Tabora
testified that Castillo “previously evaded on foot.” Nor did defense counsel object
when the prosecutor briefly referenced “the actual offense with the robbery” in its
exchange with Farmer. Because Castillo has not preserved error, we overrule his
first issue. See id.
Ineffective Assistance of Counsel
In his second issue, Castillo argues that his trial counsel was ineffective for
failing to object to the challenged testimony addressed above in his first issue.
Castillo asserts the same argument regarding both Tabora’s testimony and the
exchange between the State and Farmer without distinguishing them. He argues that
his trial counsel knew that the statements were prejudicial because counsel sought
to exclude the statements in the written motion in limine and in the bench conference
on that motion prior to trial. He further argues that no strategic reason existed for his
counsel’s failure to object during trial. The State responds that the evidence was
8 admissible and did not prejudice Castillo, and it further argues that the record is
insufficient to assess counsel’s performance.
A. Standard of Review and Governing Law
The Sixth Amendment of the United States Constitution and Article I, section
10, of the Texas Constitution guarantee a criminal defendant the right to reasonably
effective assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; see
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The right to effective
assistance of counsel requires “objectively reasonable representation,” not “errorless
counsel.” Lopez, 343 S.W.3d at 142 (citing Strickland v. Washington, 466 U.S. 668,
686 (1984), and Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)).
To establish that trial counsel provided ineffective assistance, an appellant
bears the burden to demonstrate, by a preponderance of the evidence, that: (1) his
counsel’s performance was deficient; and (2) the deficient performance prejudiced
the defense. Strickland, 466 U.S. at 687; Lopez, 343 S.W.3d at 142. An appellant
must prove both prongs before an appellate court will find counsel’s representation
to be ineffective. Lopez, 343 S.W.3d at 142 (citing Strickland, 466 U.S. at 687); see
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s
failure to satisfy one prong of the Strickland test negates a court’s need to consider
the other prong.”) (citations omitted).
9 To satisfy the first prong, Castillo must show that his trial counsel’s
performance fell below an objective standard of reasonableness under the prevailing
norms. Strickland, 466 U.S. at 687–88; Lopez, 343 S.W.3d at 142. Under the second
prong, Castillo must demonstrate prejudice, or “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694; Lopez, 343 S.W.3d at 142.
We “indulge a strong presumption” that counsel’s performance fell within the
wide range of reasonable professional assistance, and an appellant must overcome
the presumption that the challenged action might be considered “sound trial
strategy.” Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d at 142. Our review of trial
counsel’s performance is highly deferential. Strickland, 466 U.S. at 689; Bone v.
State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
For an appellate court to find that counsel was ineffective, “counsel’s
deficiency must be affirmatively demonstrated in the trial record; the court must not
engage in retrospective speculation.” Lopez, 343 S.W.3d at 142 (citing Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)); see Strickland, 466 U.S. at 689–
90 (“There are countless ways to provide effective assistance in any given case. Even
the best criminal defense attorneys would not defend a particular client in the same
way.”). “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
10 competence.” Lopez, 343 S.W.3d at 142–43 (quoting Mata v. State, 226 S.W.3d 425,
430 (Tex. Crim. App. 2007)).
In most cases, the record on direct appeal is generally undeveloped and thus
inadequate to show that trial counsel was not effective.2 Menefield v. State, 363
S.W.3d 591, 592–93 (Tex. Crim. App. 2012); see Thompson, 9 S.W.3d at 813 (“A
substantial risk of failure accompanies an appellant’s claim of ineffective assistance
of counsel on direct appeal.”). Trial counsel “should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective.” Menefield,
363 S.W.3d at 593 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005)). When trial counsel is not provided an opportunity to explain his
actions, we will not find that counsel’s performance was deficient unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” Id. (quoting Goodspeed, 187 S.W.3d at 392).
2 Claims of ineffective assistance of counsel rejected on direct appeal for “lack of adequate information may be reconsidered on an application for a writ of habeas corpus.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999) (stating that where “alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record”) (citation omitted).
11 B. Officer Tabora’s Testimony
As in most direct appeals, the record here is inadequate to show that trial
counsel’s performance fell below an objective standard of reasonableness under the
prevailing norms with respect to Tabora’s testimony. See Lopez, 343 S.W.3d at 142;
see also Menefield, 363 S.W.3d at 592–93 (stating that record on direct appeal is
generally undeveloped and thus inadequate to show ineffective assistance of
counsel). Castillo has not demonstrated that defense counsel’s conduct was so
“outrageous that no competent attorney would have engaged in it.” See Menefield,
363 S.W.3d at 593.
Castillo invokes Rule 404(b), which states, “Evidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” TEX. R. EVID.
404(b)(1). But as Castillo acknowledges, Rule 404(b)(2) states that such evidence
“may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” TEX.
R. EVID. 404(b)(2).
As stated above, Tabora testified at trial that two officers escorted Castillo to
the hospital, which was “not normal,” because “Castillo had shown that he was a
flight risk because he had previously evaded on foot.” Neither Tabora nor the State
elaborated on the comment. Defense counsel did not object. The record on appeal
12 does not indicate why defense counsel did not object to the testimony. See Lopez,
343 S.W.3d at 142. Defense counsel was silent on the issue during trial, and Castillo
did not file a motion for new trial or other post-judgment motion. Thus, the record
is silent on counsel’s reasons for not objecting to Tabora’s testimony. See id.
Without an opportunity to explain his actions, we cannot find that defense
counsel’s performance was deficient unless the conduct was “so outrageous that no
competent attorney would have engaged in it.” See Menefield, 363 S.W.3d at 593.
Given the brevity of Tabora’s testimony about a “prior” evasion on foot, it is unclear
whether that testimony was inadmissible under Rule 404(b)(1) or admissible under
Rule 404(b)(2). Moreover, Castillo has not shown that the testimony bore no
relevance to any fact of consequence in the case other than character conformity. See
Martin v. State, 144 S.W.3d 29, 31 (Tex. App.—Beaumont 2004) (stating that
character evidence may be admissible when relevant to a non-character-conformity
fact of consequence), aff’d, 173 S.W.3d 463 (Tex. Crim. App. 2005). Likewise,
Castillo has not demonstrated that this brief reference created any danger of undue
prejudice that substantially outweighed the probative value of the testimony, so as
to merit exclusion under Rule 403. See TEX. R. EVID. 403.
But even assuming arguendo that the testimony was inadmissible, the record
is insufficient to overcome the presumption that defense counsel’s failure to object
constituted sound trial strategy. See Strickland, 466 U.S. at 689; Lopez, 343 S.W.3d
13 at 142. Following Tabora’s brief mention of Castillo’s prior evasion on foot, the
prosecution immediately steered Tabora away from the subject. Defense counsel
may well have decided not to object to the testimony to avoid drawing further
attention to it. See Strickland, 466 U.S. at 689–90 (stating that counsel may provide
effective assistance in any given case in “countless ways”); Ex parte Bryant, 448
S.W.3d 29, 41 (Tex. Crim. App. 2014) (concluding that defense strategy of declining
to object so as to avoid drawing jury’s attention “may be particularly useful when,
for example, only a passing, but possibly objectionable, reference is made and the
defense attorney believes that the reference would largely go unnoticed”).
Even if Castillo had satisfied the first Strickland prong, he has not satisfied
the second prong by demonstrating that there is a reasonable probability that the
result of the proceeding would have been different but for his counsel’s deficient
performance. See Strickland, 466 U.S. at 687, 694; Lopez, 343 S.W.3d at 142.
Significantly, the prosecutor asked Tabora no follow-up questions on the subject of
any prior evasion, turning his attention instead to Tabora’s role in transporting
Castillo to the hospital and the events that occurred there. That testimony—coupled
with Williams’s testimony describing how Castillo, after being transported to the
hospital while in custody, led the officers in a chase across the hospital grounds—
provided the jury with adequate evidence to convict Castillo of the charged offense.
14 Given this evidence, Castillo has not demonstrated a reasonable possibility
that the result would have been different had defense counsel succeeded in excluding
Tabora’s testimony that Castillo had previously evaded on foot. See Lemons v. State,
426 S.W.3d 267, 272–73, 274 (Tex. App.—Texarkana 2013, pet. ref’d) (considering
admissibility of extraneous offense evidence under Rule 404(b) in determining
whether trial counsel was ineffective and concluding that “ample evidence”
supported jury’s verdict and thus appellant could not show that result of proceeding
would have been different if extraneous offense was not admitted).
Castillo does not address this evidence of guilt. Instead, he argues that
there is a reasonable probability that, but for defense counsel’s deficiency, the result of the trial would have been different. Specifically, the evidence that Appellant was some mastermind moving large caches of cocaine, marijuana, and methamphetamine throughout the country, and threatening his underlings with harm, even to the point of kidnapping, presented him in an exceedingly bad light to the jury. Surely, it is likely that a juror troubled by the question of whether or not Appellant was in custody at the time of the incident would be far less apt to insist on an acquittal after hearing that Appellant had engaged in virtually the same criminal behavior previously in “evading arrest” on foot, and that, at the time of the incident, he was charged with the very serious offense [of] robbery.
The record reveals that the State did not present any evidence about Castillo’s
supposed drug trafficking, kidnapping, or terroristic threats to the jury. Castillo has
not satisfied the second Strickland prong.
15 C. Prosecution’s Exchange with Officer Farmer
Castillo asserts the same arguments regarding counsel’s failure to object to
the following exchange between the prosecution and Farmer:
Q. Introduce yourself to the jury.
A. Yes. My name is Charles Farmer. I've been with the Houston Police Department for 11 years now and patrol at northwest.
Q. Thank you. Just to be clear, I know that my colleague here approached you. Just to be clear, what she told you was don’t mention anything about the actual offense with the robbery; is that right?
A. That’s correct.
On the record before us, Castillo has not shown that defense counsel’s failure
to object to this exchange constituted conduct so “outrageous that no competent
attorney would have engaged in it.” See Menefield, 363 S.W.3d at 593. Neither the
prosecutor nor Farmer specified that the “robbery” referred to any allegation made
against or crime committed by Castillo. Due to the motion in limine, no person had
mentioned the word “robbery” to the jury before that point. And no one mentioned
anything about a robbery throughout the remainder of the guilt-innocence phase of
the trial.
Under these circumstances, without knowing defense counsel’s motivations,
defense counsel may well have decided that objecting after the jury had already
heard the testimony would only draw attention to the State’s off-hand comment, and
that the sound trial strategy was to remain silent. See Ex parte Bryant, 448 S.W.3d 16 at 41; Menefield, 363 S.W.3d at 593 (stating that trial counsel should ordinarily be
afforded opportunity to explain action before being denounced as ineffective). We
conclude that Castillo has not met his burden on this record to show that counsel’s
performance was deficient. See Lopez, 343 S.W.3d at 142. And for the reasons given
above, we conclude that Castillo has not demonstrated prejudice due to any deficient
performance on this record.
We overrule Castillo’s second issue.
Conclusion
We affirm the judgment of the trial court. We dismiss any pending motions as
moot.
April L. Farris Justice
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).