                     CONCURRING AND DISSENTING OPINION
                                        No. 04-11-00422-CR

                                       Joel Julian CASTILLO,
                                               Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008CR10190
                          The Honorable Angus McGinty, Judge Presiding

Opinion by: Marialyn Barnard, Justice
Concurring and Dissenting Opinion by: Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: March 1, 2013

           I join the majority’s opinion in all regards except for the majority’s conclusion that

Officer Swindells’s in-court identification of Castillo should not have been admitted. I do agree

that Officer Swindells’s viewing of Castillo’s booking photo prior to trial was an impermissibly

suggestive pretrial identification of Castillo. Under the totality of the circumstances, however,

Officer Swindells’s observation of Castillo at the time of the offense, and his certain

identification of Castillo at the booking hearing, militates against a determination that the in-

court identification was the result of improper pretrial identification procedures or that there was

a substantial likelihood of misidentification. See Gamboa v. State, 296 S.W.3d 574, 581–82

(Tex. Crim. App. 2009) (evidence of witness’s other positive identifications removed any

possible taint from single impermissibly suggestive pretrial identification).       Accordingly, I
Concurring and Dissenting Opinion                                                 04-11-00422-CR


respectfully dissent from the majority’s holding on this issue but concur in the remainder of the

opinion.

                                                Catherine Stone, Chief Justice

DO NOT PUBLISH




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