Opinion issued February 21, 2013.




                                     In The
                                Court of Appeals
                                     For The
                             First District of Texas
                          ————————————
                              NO. 01-12-00396-CR
                           ———————————
                         KEVIN CASTRO, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                  On Appeal from the 248th District Court
                          Harris County, Texas
                      Trial Court Case No. 1318800


                         MEMORANDUM OPINION

     A jury found appellant Kevin Castro guilty of the first-degree felony offense

aggravated robbery with a deadly weapon and assessed a punishment of fifty

years’ imprisonment. 1 See TEX. PENAL CODE ANN. § 29.03 (West 2012). On


1
     Castro pleaded true to two enhancement paragraphs identifying Castro’s two prior
     convictions—one in 2008 and one in 2009—for felony possession of a controlled
appeal, Castro contends that (1) the trial court erred by failing sua sponte to

instruct the jury on article 38.23 of the Texas Code of Criminal Procedure, and

(2) he was denied effective assistance of counsel when his trial attorney failed

either to object or move to suppress a tainted in-court identification, or to

“sufficiently develop facts in the record regarding appellant’s physical

characteristics [as] prejudicial.” We affirm.

                                     Background

       On the morning of September 1, 2011, Carlos Ayala was at his apartment

complex working on his car. Two men, one of whom was yielding an automatic

handgun, approached him, asked what he was doing, and stole his wallet. The first

assailant, later identified as Castro, put the gun to Ayala’s stomach and said “I’m

going to rob you.” Ayala threw his wallet. When asked why he threw it, he told

the assailants to “[p]ick it up.” The second assailant then told the first assailant to

“shoot him,” but he did not. The encounter lasted close to a minute. Ayala ran to

his apartment to call the police. While running, Ayala fell, turned back, and saw

the assailants again. When he reached his apartment, Ayala saw the two men drive

off.


       substance. During the penalty phase, the State introduced evidence of other prior
       convictions, including 2005 and 2008 convictions for unlawfully carrying a
       weapon, a 2008 conviction for burglary of a habitation, and a 2005 conviction for
       failure to identify oneself to a police officer. Under these enhancement
       paragraphs, Castro was subject to a punishment of “a minimum of 25 years, [to] a
       maximum of 99 years or life” in prison.
                                           2
      Ayala’s wallet contained his driver’s license, check stubs, a credit card and a

Social Security card. Ayala described the two assailants 2 and their vehicle3 to the

first responding officer, who sent an alert over radio broadcast. A second police

officer spotted the car, Castro, and a second man, all matching Ayala’s

descriptions, at a nearby convenience store. When the two suspects drove out of

the parking area, the officer pulled them over for a “felony traffic stop.” The

officer initially arrested the men for failing to wear a seatbelt and having an

expired car registration sticker.      A search of the vehicle yielded a loaded,

semiautomatic handgun and a tax identification card bearing Ayala’s name. A

wallet matching Ayala’s description was recovered from the second assailant’s

possession.



2
      Ayala described the first assailant as a “very thin,” “smaller statured Hispanic
      male,” approximately four feet eleven inches to five feet two inches tall, weighing
      approximately 160 pounds, with black crew-cut hair, a short mustache and a light
      brown complexion. He was wearing a backwards “golf caddy” or “kangaroo-
      type” hat, shorts, and a white shirt. Ayala testified that due to his nervousness
      after the incident, he had originally mistaken the color of the hat, describing it as
      black. At trial, he testified that the hat was white. The officer who spotted the
      men before their arrest described the hat as beige. During closing statements,
      appellant’s counsel noted to the jury that by “common sense, looking at
      [Castro] . . . [h]e’s way taller than [described].” An arrest report in the clerk’s
      record describes Castro’s height as five feet, eight inches and his weight as 155
      pounds.
3
      Ayala described the two men as driving a maroon car. The only other witness to
      the offense was a maintenance worker at the apartment, who informed the
      responding officer that “he had also seen a maroon Chevy Suburban going by.”
      He did not, however, provide a sufficient description of either of the assailants.
                                            3
      The indictment charged that Castro “unlawfully, while in the course of

committing theft of property owned by Carlos Ayala, and with intent to obtain and

maintain control of the property, intentionally and knowingly threaten[ed] and

place[d] Carlos Ayala in fear of imminent bodily injury and death,” while yielding

and exhibiting a deadly weapon—a firearm. Castro pleaded not guilty to the

charge.

      At trial, the witnesses gave conflicting testimony about the events following

Castro’s arrest. Ayala recounted that the police instructed him to come to the

scene of the arrest. He drove there and stayed for approximately six to seven

minutes. When Ayala arrived, both Castro and the second suspect were standing in

front of their truck in handcuffs. At the officer’s request, Ayala, while standing

about fifty to sixty feet away, identified the truck and both suspects.

      The police officers present at the arrest and search had a different account of

the events. Officers Yzquierdo and Adams both testified that the Ayala had not

seen Castro. Officer Yzquierdo testified that he did not ask Ayala to identify the

appellant, the co-defendant or the car at the scene. Officer Adams testified that he

“made sure that [Ayala] did not see” Castro, the co-defendant or the vehicle. He

explained that the appellant and the co-defendant were in the “backseat of a police

car” when he met with Ayala. Both officers testified that they did not conduct any

formal identification process at the scene.

                                           4
      Following the arrest, the officers took the suspects to a nearby police station.

Ayala followed in his own car. When Ayala arrived at the station, the officers

showed him a live lineup and instructed him to identify the alleged assailant. An

officer who worked with Ayala during the identification process described his

demeanor as “frightened.”      The officers at the police station had difficulty

persuading Castro to cooperate and subsequently brought him into the lineup in a

“full nelson” headlock; the officers repeated this procedure on every man in the

lineup to maintain consistency. Ayala did not identify Castro in the live lineup—

he later explained that the defendant made distorting faces during the process and

put his chin down.

      Approximately forty minutes after conducting the live lineup, the police

asked Ayala to identify his assailant in a photo array. The photo spread contained

a different set of individuals from the live lineup; “the only common denominator”

between the live lineup and the photo array was Castro. Ayala, however, could not

identify Castro in the first showing of the photo array. Thus, a police detective

showed Ayala his wallet and identification card, seized from the assailants, and

told Ayala, “You need to show me who it is.” The officers showed Ayala the

photo array again. At that point, Ayala positively identified Castro and signed his

picture.




                                          5
      At trial, Ayala identified Castro as the man who robbed him. Castro’s trial

counsel did not object.     His trial counsel had no objections to the guilt-innocence

charge, nor did he request that the jury be instructed to disregard evidence obtained

in violation of federal or Texas law.

                                        Discussion

I.    Failure to instruct the jury sua sponte on article 38.23 of the Texas Code
      of Criminal Procedure
      Castro claims that the trial court erred in not sua sponte providing an article

38.23 jury instruction because: (1) the jury heard disputed evidence about whether

Ayala identified the appellant at the scene of the arrest; (2) Castro’s trial counsel’s

cross-examinations and his closing argument raised the contention that that the

events leading up to Castro’s formal identification were “unlawfully suggestive;”

and (3) that contested fact issue was material to the reliability of Ayala’s in-court

identification of Castro.

      A.     Standard of review

      A trial court must submit to the jury “the law applicable to the case.” See

TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2012); Bolden v. State, 73 S.W.3d

428, 431 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When a statute requires

an instruction under the circumstances, that instruction is “law applicable to the

case,” and the trial court must instruct the jury regarding what is required under the

statute. Oursbourn v. State, 259 S.W.3d 159, 180–81 (Tex. Crim. App. 2008).

                                            6
      B.     Law and analysis

      Texas Code of Criminal Procedure article 38.23(a) provides that:

      No evidence obtained by an officer or other person in violation of any
      provisions of the Constitution or laws of the State of Texas, or of the
      Constitution or laws of the United States of America, shall be
      admitted in evidence against the accused on the trial of any criminal
      case.

      In any case where the legal evidence raises an issue hereunder, the
      jury shall be instructed that if it believes, or has a reasonable doubt,
      that the evidence was obtained in violation of the provisions of this
      Article, then and in such event, the jury shall disregard any evidence
      so obtained.

TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2012). The Texas Court of

Criminal Appeals has held that article 38.23, by its terms, applies only to illegally

obtained evidence, not to in-court identifications. Allen v. State, 511 S.W.2d 53,

54 (Tex. Crim. App. 1974); see Andujo v. State, 755 S.W.2d 138, 143 (Tex. Crim.

App. 1988). Further, a challenge to the accuracy of witness identification raises

the defensive issue of mistaken identification. See Wilson v. State, 581 S.W.2d

661, 663 (Tex. Crim. App. 1979) (observing that mistaken identification is

traditional defensive issue, because State has burden to prove identity of defendant

as party who committed crime charged). A trial court must submit the issue if the

evidence warrants it and the defendant timely requests it. See id. The trial court,

however, has no statutory duty to sua sponte instruct the jury on an unrequested

defensive issue, because a defensive issue is not “applicable to the case” unless the


                                         7
defendant timely requests the issue or objects to the issue’s omission from the jury

charge. Oursborn, 259 S.W.3d at 180. No such request or objection occurred

here. Accordingly, we hold that the trial court did not err by failing to sua sponte

instruct the jury on the issue of Ayala’s in-court identification.

II.   Ineffective Assistance of Counsel

      In his second point of error, Castro argues that “the cumulative effect of

[his] trial counsel’s errors denied [him the] effective assistance of counsel.” Castro

points to his trial counsel’s failure (1) to object to Ayala’s in-court identification of

Castro, (2) to move to suppress Ayala’s anticipated testimony, and (3) to

sufficiently develop the evidence regarding appellant’s physical characteristics.

      A.     Standard of review

      To prevail on a claim of ineffective assistance of counsel, an appellant must

show that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) but for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Mitchell v. State,

68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). A reasonable probability is “a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068; Mitchell, 68 S.W.3d at 642. A failure to make a showing under either prong


                                           8
defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110

(Tex. Crim. App. 2003).

      In analyzing an ineffective assistance claim, courts apply a “strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Robertson v. State, 187 S.W.3d 475, 482 (Tex. Crim.

App. 2006) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2052). Before an

appellate court may find that counsel was ineffective, the record must affirmatively

demonstrate counsel’s deficiency; “the court must not engage in retrospective

speculation.” Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).            “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 competence.” Mata

v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). “When such direct

evidence is not available, we will assume that counsel had a strategy if any

reasonably sound strategic motivation can be imagined.” Lopez, 343 S.W.3d at

143 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). “In

making an assessment of effective assistance of counsel, an appellate court must

review the totality of the representation and the circumstances of each case without

the benefit of hindsight.” Lopez, 343 S.W.3d at 143 (citing Robertson, 187 S.W.3d

at 483). Isolated instances of a failure to object to inadmissible argument or

                                         9
evidence do not necessarily render counsel ineffective. See Robertson, 187 S.W.3d

at 483.

      B.    Analysis

      Under the first prong of Strickland, appellant must show that his trial

counsel’s performance fell below the objective standard of reasonableness. See

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064 (“This requires showing that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.”). The appellant contends that

Ayala’s in-court identification of Castro was tainted, as it was based on an

impermissibly suggestive pre-trial identification process, and his counsel erred in

failing to move to suppress Ayala’s anticipated identification of Castro as the

assailant, to object to Ayala’s in-court testimony, and to elicit and preserve

evidence of a more detailed physical description of Ayala.

      The record contains no reason or explanation as to why trial counsel did not

move to suppress Ayala’s in-court identification. Absent an explanation, Castro

cannot satisfy the first prong of Strickland. Bone v. State, 77 S.W.3d 828, 830

(Tex. Crim. App. 2002), cited in Greene v. State, 124 S.W.3d 789, 791–92 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d). The Court of Criminal Appeals has

explained that “any allegation of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness.”

                                        10
Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (quoting Thompson, 9

S.W.3d at 814). While a single point of egregious error may render a counsel’s

performance ineffective, in only rare instances will the record on direct appeal

provide sufficient evidence. Thompson, 9 S.W.3d at 813 (citing Jackson v. State,

766 S.W.2d 504, 508 (Tex. Crim. App. 1985)); Mallet, 65 S.W.3d at 63. In

Thompson, the appellant contended that his trial counsel was ineffective after he

failed to object to the introduction of “testimony already declared inadmissible

hearsay” and then failed to “request a mistrial” after its introduction. 9 S.W.3d at

809. The Court of Criminal Appeals held that the record, silent as to a “discernible

explanation” for counsel’s motivations, was insufficient to satisfy Strickland,

because counsel could have had a reasonable motive for his actions, under the

specific facts of the case. Id. at 814.

       2.     Reasonable probability of a different result

       Castro likewise fails to prove the second prong, that it is “reasonabl[y]

probab[le] that, but for his counsel’s unprofessional errors, the result of the

proceeding would have been different.”               Bone, 77 S.W.3d at 833 (quoting

(Mitchell, 68 S.W.3d at 642); see Strickland, 466 U.S. at 687, 104 S. Ct. at 2064

(“[T]he defendant must show that the deficient performance prejudiced the

defense ,” and that “counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.”).

                                              11
      Putting aside Ayala’s in-court identification of Castro, the remaining

evidence would allow a reasonable jury to find Castro guilty of the robbery. See

Green, 124 S.W.3d at 792. Ayala described Castro with reasonable accuracy to the

first responding officer before the pretrial identification procedure. A third party

confirmed that, close to the time of the robbery, he saw a maroon Suburban—the

same type of vehicle that Castro was arrested in—near the apartment complex.

The arresting officer found Castro in the Suburban, as well as Ayala’s tax

identification card and a] semi-automatic handgun that matched Ayala’s

description of the gun that Castro pointed at him. This evidence sufficiently ties

Castro to the crime such that Castro has not shown a probable likelihood that the

outcome would be different had counsel successfully objected to the line-up.

                                   Conclusion

      We hold that the trial court had no sua sponte obligation to instruct the jury

on article 38.23 of the Texas Code of Criminal Procedure. We further hold that

Castro has not met his burden to show that he was denied effective assistance of

counsel. We therefore affirm the judgment of the trial court.



                                             Jane Bland
                                             Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).
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