                                  NUMBER 13-10-00317-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

JESSE CASTILLO JR.,                                                                       Appellant,

                                                    v.

THE STATE OF TEXAS,                                                                        Appellee.


                        On appeal from the 24th District Court
                             of Victoria County, Texas.


                             MEMORANDUM OPINION1
     Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez
        A jury convicted appellant Jesse Castillo Jr. of continuous sexual assault of H.L., a



        1
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
child less than fourteen years old,2 and sentenced him to thirty-seven years in the Texas

Department of Criminal Justice—Institutional Division, without eligibility for parole. See

TEX. PENAL CODE ANN. ' 21.02 (West Supp. 2010). By five issues, Castillo complains of

the following: (1) trial court error in removing a juror from the panel; (2-4) trial court error

in admitting outcry testimony, "bolstering" testimony, and the Child Advocacy Center

(CAC) child assessment videotape; and (5) ineffective assistance of counsel. We affirm.

                                         I. Removal of a Juror

       By his first issue, Castillo contends that the trial court erred when it removed a juror

from the panel before trial and, without declaring the juror disabled, replaced him with a

juror who had departed. He also complains that the trial court erred when it did not

declare a mistrial.

A. Background

       After the jury was sworn but before any witnesses were called, the trial court

notified the parties that it had received a letter from one juror explaining that he had a

similar sexual-abuse experience in his family. At a bench conference, when the trial

court asked this juror if he could make a decision about the guilt or innocence of Castillo

based on the evidence alone, he answered, "I don't know." The juror also agreed that he

was very concerned about that—"[v]ery much so." The State and defense counsel

declined the opportunity to ask questions of this juror.

       After the juror returned to the jury room, the trial court expressed its belief that it did

not think the juror's answer was equivocal; the court "thought [the juror] was definitely

saying . . . that he didn't know if he could be fair." The trial court concluded that it had "no
       2
           Initials have been used to protect the identity of the child.
                                                        2
choice but to excuse him from jury duty in this trial." Castillo did not object, and the trial

court excused the juror.

       The trial court then asked Castillo if he was willing to "try this case to the 11

remaining jurors." See TEX. CODE CRIM. PROC. ANN. art. 36.29 (West Supp. 2010).

Castillo responded, "No." The trial court next asked Castillo if he wanted a mistrial, and

Castillo responded, "No, I don't."       After Castillo rejected a mistrial, the following

exchange occurred between the trial court, Castillo, his counsel, and the State:

       Court:                Then the next solution is, by agreement[,] we can have
                             the next juror on the list . . . come in, I can read the
                             instructions to him, I can have the indictment read
                             again to Mr. Castillo in [his] presence and receive his
                             plea and then add [this next juror] to the jury, thereby
                             comprising a 12-person jury. Mr. Castillo, do you
                             agree to that solution?

       Castillo:             Yes, sir.

       Court:                [Defense counsel], do you agree to that—

       [Defense Counsel]: Yes, sir.

       Court:                —solution?     [A]nd does the State agree to that
                             solution?

       [State]:              State agrees, Your Honor.

B. Discussion

       Now, on appeal, Castillo asserts that because the excused juror may only have

been biased or prejudiced against him and because the juror did not answer definitively

"yes" or "no," the trial court "improperly and too quickly released [the] juror . . . from duty

prior to making an appropriate detailed inquiry," and once released and without an

agreement to proceed with only eleven jurors, the trial court failed to pursue the only

                                              3
remedy "sanctioned by article 36.29," which Castillo identifies as the "discharge of the

remainder of the jury panel through declaration of a mistrial." See id.

       The initial question before us appears to be whether the juror was disabled within

the context of article 36.29(a). See id. (setting out that if, after the trial of any felony case

begins and a juror dies or, as determined by the judge, becomes disabled from sitting, the

remainder of the jury has the power to render the verdict). A juror is disabled if he has a

"physical illness, mental condition, or emotional state" which hinders the juror's ability to

perform the duty of a juror. Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2001).

We "defer to the trial court's factual determinations . . . because the judge is

'Johnny-on-the-spot,' personally able to see and hear the witnesses testify. He makes

credibility determinations, based upon demeanor, tone of voice, hesitancy of speech,

perhaps the almost imperceptible shrug of shoulders, tightening of the jaw, or clench of

fists." Manzi v. State, 88 S.W.3d 240, 254 (Tex. Crim. App. 2002) (citing Anderson v.

Bessemer City, 470 U.S. 564, 575 (1985) ("[O]nly the trial judge can be aware of the

variations in demeanor and tone of voice that bear so heavily on the listener's

understanding of and belief in what is said.")).

       With regard to claims of error during jury selection, the trial court's ruling will not be

disturbed absent a showing of an abuse of discretion. Jones v. State, 982 S.W.2d 386,

388 (Tex. Crim. App. 1998) (en banc) (stating that an abuse of discretion standard applies

to error in selecting jury); Curry v. State, 910 S.W.2d 490, 493 (Tex. Crim. App. 1995) (en

banc). If a juror vacillates or equivocates on the juror's ability to follow the law, "the

reviewing court must defer to the trial court's judgment." Brown v. State, 913 S.W.2d


                                               4
577, 580 (Tex. Crim. App. 1996); Riley v. State, 889 S.W.2d 290, 300 (Tex. Crim. App.

1993) (en banc).

        In sum, the evidence in this case reveals that the trial court received a letter from

the juror in question indicating that his daughter had a similar experience as did H.L. in

this case. The juror indicated that he did not know if he could hear the evidence,

evaluate it, and make a decision of guilt or innocence based on that evidence alone.

When the trial court asked the juror if he was concerned about that, he responded, "Very

much so." Then, when provided an opportunity to ask questions of this juror, neither the

State nor Castillo did so. And Castillo raised no objection to this juror being excused.

The trial court, being aware of the variations in the juror's demeanor, tone of voice, and

hesitancy of speech, among other things, concluded that the juror's response was not

equivocal and that it had no choice but to excuse him. See Manzi, 88 S.W.3d at 254.

Further, even had the juror been vacillating in his belief that he could apply the facts to the

law, we must defer to the trial court's judgment.                 See Brown, 913 S.W.2d at 480.

Therefore, assuming without deciding that this issue was preserved for our review, 3

based on the evidence before the trial court, we conclude the trial court did not abuse its

discretion on this basis. See Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App.

2003) (providing that the determination as to whether a juror is disabled is within the

discretion of the trial court); Jones, 982 S.W.2d at 388.

        Having determined that the trial court did not abuse its discretion by excusing the

juror, the second matter for this Court to determine is whether the trial court erred by


        3
        We note that the State first asserted that Castillo failed to preserve this issue of juror disability
because he did not object when the trial court excused the juror.
                                                     5
failing to discharge the remainder of the jury panel through declaration of a mistrial.

Article 36.29 "is not applicable until the jury is sworn." Broussard v. State, 910 S.W.2d

952, 957 (Tex. Crim. App. 1995). The jury had been sworn in this case, therefore, article

36.29 applied.    Generally, the trial court errs if it does not give a defendant the

opportunity to choose between continuing with eleven jurors, as provided by article 36.29,

or seeking a mistrial. See generally Carrillo v. State, 597 S.W.2d 769, 771 (Tex. Crim.

App. 1980); see also Hegar v. State, 11 S.W.3d 290, 294 (Tex. App.—Houston [1st Dist.]

1999, no pet.); accord Decker v. State, 717 S.W.2d 903, 905 (Tex. Crim. App. 1983) (en

banc) (applying article 36.29 reasoning in unsworn jury case) (citing Williams v. State,

631 S.W.2d 955, 957 (Tex. App.—Austin 1982, no pet.)). In this case, however, the trial

court gave Castillo that opportunity. Castillo informed the court that he chose neither

eleven jurors nor the opportunity to seek a mistrial, and Castillo's counsel did not indicate

otherwise. Instead, Castillo, his counsel, and the State agreed to bring in the next juror

on the list, read that juror the instructions, read the indictment again to Castillo in the

presence of that juror, receive his plea, and then add the next juror to the jury, thereby

comprising a twelve-person jury.

       It is within the trial court's sound discretion to consider less drastic alternatives to a

mistrial. Strickland v. State, 741 S.W.2d 551, 552-53 (Tex. App.—Dallas 1987, no pet.).

Here, the trial court held a hearing and established facts relevant to proceeding to trial

with eleven jurors. After Castillo declined that possibility and informed the trial court he

did not want to pursue a mistrial, all parties agreed to bring in the next juror not previously

struck and to continue the trial with twelve jurors. In this case, we conclude that it was


                                               6
proper for the trial court to proceed in this manner and that the trial court did not abuse its

discretion on this basis. We overrule Castillo's first issue.

                                  II. Admission of Evidence

A. Outcry Testimony

       By his second issue, Castillo complains that the trial court erred when it admitted

outcry testimony of R.G., H.L.'s step-mother,4 without first holding a hearing outside the

presence of the jury to determine the reliability of the statement based on the time,

content, and circumstances of the statement, as required by article 38.072 of the code of

criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.072, § 2(b)(2) (West Supp.

2010). Castillo contends that this error affected his substantial rights to a fair and just

trial and constitutes reversible error.

       It is undisputed that the trial court did not conduct a reliability hearing. See id.

However, any error resulting from the admission of the testimony of R.G. was rendered

harmless when other evidence was admitted describing the same facts. See Lane v.

State, 151 S.W.3d 188, 192-93 (Tex. Crim. App. 2004); Long v. State, 821 S.W.2d 216,

217 (Tex. App.—Houston [14th Dist.] 1991, no pet.). H.L. testified regarding the details

of the sexual abuse. Castillo did not object to this testimony. On cross-examination,

H.L. confirmed that she talked with R.G. and told her what Castillo had done. Because

the same facts were described through H.L.'s testimony, without objection, any error in

the admission of R.G.'s outcry testimony was harmless. See Lane, 151 S.W.3d at

192-93; Long, 821 S.W.2d at 217. We overrule Castillo's second issue.


       4
         R.G. testified that H.L.'s father was her common-law husband and that she had known H.L. since
H.L. was a baby.
                                                  7
B. "Bolstering" Testimony

       Castillo contends, by his third issue, that the trial court erred when it admitted the

following allegedly improper bolstering testimony offered by R.G. on redirect examination

by the State:

       Q.       So do you believe [H.L.] or not?

       A.       Yes, I do.

Castillo offered no objection, and this issue has not been preserved for our review. See

TEX. R. APP. P. 33.1(a). We overrule Castillo's third issue.

C. CAC Assessment Videotape

       In his fourth issue, Castillo contends that the trial court erred when, contrary to the

provisions of rule of evidence 801(a)(1)(B), it admitted the CAC child assessment

videotape as a prior consistent statement. See TEX. R. EVID. 801(e)(1)(B). He claims

that the State's reliance on rule 801 and Hammons v. State is misplaced. See TEX. R.

EVID. 801(e)(1)(B); Hammons, 239 S.W.3d 798, 806 (Tex. Crim. App. 2007).                  We

disagree.

       Rule 801(e)(1)(B) provides that a statement is not hearsay if the declarant testifies

at trial subject to cross-examination, the statement is consistent with the declarant's

testimony, and the statement "is offered to rebut an express or implied charge against the

declarant of recent fabrication or improper influence or motive."             TEX. R. EVID.

801(e)(1)(B).     It is clear from the record that H.L. testified at trial and was

cross-examined before the videotape was introduced and admitted into evidence. See

id.   It is also undisputed that H.L.'s prior statement was consistent with her trial


                                              8
testimony. See id. The only question then before this Court is whether a charge of

recent fabrication was raised by Castillo which would warrant admission of H.L.'s prior

consistent statement under rule 801(e)(1)(B).5 See id.

        We review the trial court's ruling that a prior consistent statement is admissible

under rule 801(e)(1)(B) for an abuse of discretion. Hammons, 239 S.W.3d at 806. The

trial court abuses its discretion only when the decision lies "outside the zone of

reasonable disagreement." Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App.

2007) (quoting Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005)). We view

the evidence in the light most favorable to the trial court's ruling admitting the statement.

Klein v. State, 273 S.W.3d 297, 304 (Tex. Crim. App. 2008).

        In assessing whether the cross-examination of a witness makes an implied charge

of recent fabrication or improper motive, a reviewing court should focus on the "purpose

of the impeaching party, the surrounding circumstances, and the interpretation put on

them by the [trial] court." Hammons, 239 S.W.3d at 808 (citation omitted). A charge of

recent fabrication "may be subtly implied through tone, tenor, and demeanor" and need

not be restricted to the specific wording used by counsel. Id. at 799. Because there is

no "bright line" between a challenge to the witness's memory or credibility and a

suggestion of conscious fabrication, the trial court has substantial discretion in

determining whether the tenor of the questioning reasonably implies a recent, conscious

        5
           At the hearing on the State's motion to admit the videotape, Castillo informed the trial court that at
some point he would be arguing that H.L. fabricated the accusations. On appeal, Castillo contends that
any concession at the hearing was to an implied charge against H.L. of fabrication from the beginning; it
was not an implied charge against H.L. of recent fabrication. See TEX. R. EVID. 801(e)(1)(B). However,
arguments on appeal must comport with arguments made at trial, and an appellant must bring to the trial
court's attention the very complaint that it is now making on appeal. See Reyna v. State, 168 S.W.3d 173,
177 (Tex. Crim. App. 2005). Because Castillo did not urge the distinction to the trial court, he has failed to
preserve this argument for our review. See id.
                                                       9
intent to fabricate. Id. at 804-05.

       Here, Castillo cross-examined H.L. concerning the overall strictness of her father

and step-mother as compared to her mother and Castillo. Specifically, Castillo asked

H.L. if her father and step-mother were more lenient with the way she dressed than

Castillo or not as "strict." Castillo also asked questions about which set of parents

allowed her to talk with male friends. Later during this cross-examination, Castillo asked

H.L. who was less strict, her dad and step-mother or her mother and Castillo.

       At the hearing on the State's motion to admit the videotape, after ruling that it was

"going to let the tape in," the trial court explained its reasoning as follows: "Because I

believe that there is an implied—through the cross[-]examination I think there is an

implication that there is recent fabrication in the girl's testimony and therefore I think it fits

the rule and so I'm allowing it in."

       Assuming without deciding that Castillo made no concession of fabrication at the

hearing and "giving deference to the trial judge's assessment of tone, tenor, and

demeanor," we conclude the trial court did not abuse its discretion in admitting the

videotaped out-of-court statement under rule 801(e)(1)(B).             See id. at 809.       The

implication made by Castillo through this line of questioning was that H.L. fabricated the

evidence against him so that she could live with her biological father and step-mother who

were not as strict as Castillo. A reasonable juror could have concluded that Castillo, the

cross-examiner, was mounting a charge of recent fabrication which would warrant

admission of the videotape—H.L.'s prior consistent statement—under rule 801(e)(1)(B).

See id.; Michael v. State, 235 S.W.3d 723, 728 (Tex. Crim. App. 2007); see also TEX. R.


                                               10
EVID. 801(e)(1)(B). We overrule Castillo's fourth issue.6

                            III. Ineffective Assistance of Council

        By his fifth issue, Castillo asserts that trial counsel provided ineffective assistance.

Castillo alleges that counsel was ineffective when he failed to do the following: (1)

request a mistrial when presented with the juror disability issue prior to starting trial; (2)

request an outcry-witness reliability hearing; (3) request a gatekeeper hearing; (4) object

to the introduction of the medical records of sexual assault nurse examiner; (5) object to

the bolstering of H.L.'s testimony by the nurse; (6) cross-examine the State's

victim-impact counselor during the punishment hearing; and (7) present an adequate

closing argument during the punishment phase of the trial.

A. Standard of Review

        Strickland v. Washington sets forth the standard with which we review claims of

ineffective assistance of counsel. 466 U.S. 668, 688 (1984); see Stafford v. State, 813

S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc). In order to determine whether

appellant's trial counsel rendered ineffective assistance at trial, we must first determine

whether he has shown counsel's representation fell below an objective standard of

reasonableness—whether counsel's representation was deficient—and, if so, then

determine whether there is a reasonable probability that the result would have been

different but for counsel's errors—whether the deficient performance was so serious that

it deprived appellant of a fair trial. Strickland, 466 U.S. at 688, 690-94.
        6
          Castillo also argues, by his fourth issue, that the videotape was admitted contrary to article
38.071 of the Texas Code of Criminal Procedure; specifically that the State did not establish the proper
predicate for the admission of the videotape. See TEX. CODE CRIM. PROC. ANN. art. 38.071 (West Supp.
2010). However, this argument was not made to the trial court and, therefore, was not preserved for our
review. See Reyna, 168 S.W.3d at 177.

                                                  11
       In assessing a claim of ineffective assistance of counsel, we indulge a strong

presumption that "counsel's conduct fell within a wide range of reasonable

representation."   Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005).

Appellant must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy. Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001); Stafford, 813 S.W.2d at 508-09. When the record is silent as to

trial counsel's strategy, we will not conclude that appellant received ineffective assistance

unless the challenged conduct was "so outrageous that no competent attorney would

have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

And rarely will the trial record on direct appeal contain sufficient information to permit a

reviewing court to fairly evaluate the merits of such a serious allegation. Bone v. State,

77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of cases, the appellant is

unable to meet the first prong of the Strickland test because the record on direct appeal is

underdeveloped and does not adequately reflect the alleged failings of trial counsel.

Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). To demonstrate prejudice

under the second prong, appellant must show 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. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.

B. Discussion

       1. Mistrial After a Juror Was Declared Disabled

       Castillo first complains that counsel was ineffective when he did not argue for a


                                             12
mistrial or when counsel refused to accept a mistrial offered by the trial court when a juror

was declared disabled although Castillo himself refused to accept a mistrial.                He

contends that the requirements of article 36.29(c) are mandatory, including the granting

of a mistrial, and argues that counsel's incorrect understanding of this requirement cannot

reasonably be considered to be trial strategy or tactics. See TEX. CODE CRIM. PROC. ANN.

art. 36.29(c). Castillo asserts that "[i]f a mistrial would have been granted, a new panel

of prospective jurors would have then been examined, and trial counsel would have had

the opportunity to apply the lessons already learned from the State's initial voir dire

examination."

       As we set out in Castillo's first issue, a trial court has discretion to consider the less

drastic alternative to a mistrial, and in this case, the trial court did so. See Strickland, 741

S.W.2d at 552-53. The record is silent as to trial counsel's strategy in choosing to go

forward. Bone, 77 S.W.3d at 833. It is possible that Castillo and his counsel wanted to

exclude this juror because he might have been prejudiced against Castillo. We may not

speculate about why counsel acted as he did, see Toney v. State, 3 S.W.3d 199, 210

(Tex. App.—Houston [14th Dist.] 1999, pet. ref'd), and we simply do not have sufficient

information to make the determination that this challenged conduct was "so outrageous

that no competent attorney would have engaged in it." See Goodspeed, 187 S.W.3d at

392.    Therefore, the first prong—deficient performance—has not been satisfied.

Strickland, 466 U.S. at 688, 690-94. Moreover, on this record, we are not persuaded by

Castillo's second-prong argument, that the result of the proceedings would have been

different had a new panel been selected because defense counsel "would have had the


                                              13
opportunity to apply the lessons already learned from the State's initial voir dire

examination." See id. at 694.

        2. Outcry-Witness Hearing

        Castillo also contends that counsel was ineffective when he did not object to the

trial court's failure to conduct an outcry-witness hearing in order to determine the reliability

of H.L.'s statement to R.G. See TEX. CODE CRIM. PROC. ANN. art. 38.072. Castillo

asserts that there is no strategic reason for failing to request the hearing when it becomes

apparent that the trial court is not going to do so and that by not having a hearing, the trial

court was deprived of its ability to determine the reliability of the statement as to time,

content, and circumstances. See id. We are not persuaded by these arguments when

H.L. testified and described the same details of the sexual abuse. 7 See Lane, 151

S.W.3d at 192-93; Long, 821 S.W.2d at 217.

        3. Gatekeeper Hearing Pursuant to Rule of Evidence 705(b)

        Castillo complains that counsel was ineffective when he did not request a rule

705(b) hearing for either of the State's expert witnesses, Elena Torres, a family violence

counsel, and Lisa Baylor, a forensic scientist. See TEX. R. EVID. 705(b) (allowing the

opposing party an opportunity to explore the basis of the expert's opinions without fear of

eliciting damaging hearsay or other inadmissible evidence in the presence of the jury).

He asserts that, had counsel requested a rule 705(b) hearing, the defense would have

been allowed to conduct a voir dire examination directed to the underlying facts or data

        7
           Castillo also asserts that counsel did not properly object to statements made by H.L. as testified
to by a witness who was not designated as an outcry witness. Castillo presents this as a basis for his
ineffective assistance of counsel complaint in his "Summary of the Argument," but his brief wholly fails to
discuss or analyze the argument and does not contain citations to the record or authority. We conclude
that Castillo has waived this argument. See TEX. R. APP. P. 38.1(i).
                                                    14
upon which each opinion was based. See id.

              a. Elena Torres

       As acknowledged by Castillo, the subject matter of Torres's testimony related to

the reactions of children to sexual abuse. Although Torres generally testified regarding

such reactions, our review of the record reveals that Torres provided no damaging,

inadmissible testimony in the presence of the jury that could have been discovered in a

rule 705(b) hearing outside the presence of the jury. See Goss v. State, 826 S.W.2d

162, 168 (Tex. Crim. App. 1992) (en banc); see also McBride v. State, 862 S.W.2d 600,

609 (Tex. Crim. App. 1993) (en banc); Vasquez v. State, 819 S.W.2d 932, 935 (Tex.

App.—Corpus Christi 1991, pet. ref'd) (providing that rule 705(b) allows the party not

calling the expert to explore the basis for the opinions without having the jury exposed to

otherwise inadmissible data).

       Furthermore, during cross-examination trial counsel had the opportunity to, and

did, ask Torres whether the reactions about which she testified were always associated

with sexual abuse. Counsel asked, "Could a child take on characteristics of sexual

assault without actually having been sexually assaulted?", and Torres responded,

"Rarely." Following a series of questions directed at eliciting testimony regarding how a

child might fabricate such responses, counsel's cross-examination ended with the

following:

       Q.     But isn't it also possible that we're also training a child, if they wanted
              to get an adult in trouble, we're teaching them what to say to trigger
              investigations, we're training them what to say in order to make it
              more believable?

       A.     It's just very, very rare that that ever happens.

                                              15
       Q.     But it is possible?

       A.     I suppose. Anything's possible, I mean. . . .

Clearly, counsel's strategy was to discredit Torres's testimony in support of his fabrication

defense. We cannot conclude that the lack of a hearing impacted the effect of Torres's

testimony.

       Finally, Castillo complains that counsel was ineffective because he did not

cross-examine Torres as to whether she had personally interviewed or met with H.L. or

any member of her family. He asserts that "this arguably left the jury with the decision

that Ms. Torres had, indeed, met with the complaining witness and/or members of her

family and had formed her opinion as a result of such interview(s) and meeting(s)."

However, the record is silent on this point, and it is just as arguable that because neither

the State nor defense counsel addressed these facts, it was apparent to the jury that

Torres had met with neither H.L. nor her family members.

              b. Lisa Baylor

       Again, as with Baylor, Castillo complains that had trial counsel requested a 705(b)

evidentiary hearing, he would have been allowed to conduct a voir dire examination to

explore the underlying facts or data underlying Baylor's opinion as to DNA evidence.

See TEX. R. EVID. 705(b). Thus, Castillo argues that his defense counsel was ineffective

for not doing so.

       Without providing record citations, Castillo summarily states that "Ms. Baylor

testified about the stratospheric probabilities that another Hispanic male, other than

[Castillo], could be found on the planet matching the DNA profile results produced by her

                                             16
analysis." Castillo then makes the following argument, specific as to Baylor:

             With regard to Ms. Baylor's testimony, there was no record of any
      cross-examination as to lab protocols, lab procedures, sample error rates,
      and the like. While [Castillo] readily concedes that DNA technology is no
      longer a novel science, he respectfully asserts that a proper 705(b)
      evidentiary hearing can uncover possible problems as to the application of
      the scientific techniques to this particular case. . . .

               There was no effective cross-examination of Ms. Baylor regarding
      lab protocol and procedures. The State was not put to its burden to show
      for the testimony of . . . Ms. Baylor that the requirements of qualification,
      reliability, and relevance of the testimony had been met. (Citations omitted.)

      Our review of the State's direct examination of Baylor, however, reveals that the

State met the requirements of qualification, reliability, and relevance. See Vela v. State,

209 S.W.3d 128, 130-31 (Tex. Crim. App. 2006) (explaining that these requirements are

based on Texas Rules of Evidence 104(a) (qualification), 702 (reliability), and 401 and

402 (relevance)). Because the record is silent regarding counsel's strategy, we do not

know why counsel chose to refrain from addressing these matters on cross-examination.

Instead, he chose to challenge the conclusiveness of Baylor's findings as to Castillo and

the possibility of the DNA being that of another person from whom a buccal swab was not

obtained. We cannot conclude that this challenged conduct was "so outrageous that no

competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392. And,

as we determined in Castillo's challenge to the State's expert on family violence, neither

can we conclude that the lack of a hearing impacted the effect of Baylor's testimony.

      4. Admission of Medical Records and Nurse's "Bolstering" Testimony

      Castillo argues that counsel was ineffective when he failed to make a hearsay

objection to the admission of the Sexual Assault Examination Forensic Report of Leslie


                                            17
Kallus, the sexual assault nurse examiner who examined H.L., because this medical

record identified Castillo as the perpetrator of the sexual assault. Castillo acknowledges

that the State would have likely obtained the admission of the medical record under

hearsay exception 803(4), see TEX. R. EVID. 803(4); Taylor v. State, 268 S.W.3d 571, 590

(Tex. Crim. App. 2008), but in doing so would have provided trial counsel with important

information useful for cross-examination purposes including such matters as the lag

period between the interview and her arrival at the hospital, the method of interrogation

and examination, and types of statements made.          Castillo also contends that trial

counsel was ineffective in his representation when he did not object when Kallus testified

on direct examination that the biological evidence on H.L.'s breast demonstrating that

Castillo could not be excluded as a contributor was consistent with H.L.'s medical history

and her description of what had occurred.

       We do not know why Castillo chose to refrain from objecting to Kallus's allegedly

inadmissible testimony or to the admission of her medical records. The record is devoid

of any explanation regarding counsel's reasons or strategy in not objecting. It is possible

that counsel may have chosen not to object to the evidence because "an objection might

draw unwanted attention to a particular issue." Bollinger v. State, 224 S.W.3d 768, 781

(Tex. App.—Eastland 2007, pet. ref'd). Therefore, the record does not demonstrate that

the challenged conduct was not so outrageous that no competent attorney would have

engaged in it, and Castillo has failed to overcome the presumption that counsel's actions

were sound trial strategy. See Goodspeed, 187 S.W.3d at 392; Garcia, 57 S.W.3d at

440; Stafford, 813 S.W.2d at 508-09.


                                            18
      6. Cross-Examine a Witness During the Punishment Phase of the Trial

      Castillo also bases his claim of ineffective assistance on counsel's failure to

cross-examine the State's victim-impact counselor, Leticia Lechuga, during the

punishment phase of the trial.      The State called Lechuga, a crisis interventionist

counselor at Hope of South Texas, who saw H.L. on forty different occasions beginning

July 3, 2008. The State focused its questions on how H.L. reacted when her mother

stopped supporting her and how different victims react to sexual abuse, not how H.L.

reacted to sexual abuse. When the State passed the witness, defense counsel asked no

questions.

      Castillo asserts that because Lechuga had seen H.L. on many occasions, she

would have been able to testify about the events which had occurred in her life since the

sexual abuse incidents.     He argues, based on defense counsel's "no questions"

approach, that the jury was left with the sole impression provided by Lechuga that sexual

abuse victims have boundary issues, become promiscuous, have trust issues, and get

into abusive unhealthy relationships because their self-worth and self-esteem have been

so damaged that counseling may not be able to repair the damage. Castillo urges this

Court to find that it is clear from the record that there existed no compelling strategic

reason to not ask questions of Lechuga and that her opinions should have been fully

developed on cross-examination. We decline to do so.

      The State's direct examination of Lechuga highlighted H.L.'s reaction to the loss of

her mother's support. Lechuga also provided testimony about how persons who are

sexually assaulted generally react. The record is silent as to the motivation of counsel's


                                           19
tactial and strategic decisions. Defense counsel may have made a strategic decision to

not cross-examine Lechuga fearing adverse effects from such examination or fearing that

he may inadvertently introduce damaging evidence, i.e., that H.L. did, in fact, exhibit

reactions similar to those discussed by Lechuga. See Rockwood v. State, 524 S.W.2d

292, 293-94 (Tex. Crim. App. 1975) (concluding that counsel's failure to cross examine

the complainant, among other things, was not ineffective assistance); Pryor v. State, 719

S.W.2d 628, 634 (Tex. App.— Dallas 1986, pet. ref'd) (same); see also Grant v. State,

No. 13-08-00424-CR, 2009 Tex. App. LEXIS 1629, at *4-6 (Tex. App.—Corpus Christi

2009, no pet.) (mem. op., not designated for publication) (concluding that defense

counsel's   failure   to   present   available    impeachment   evidence    or   thoroughly

cross-examine the victim did not constitute ineffective assistance where record was silent

as to the motivation of counsel's tactical and strategic decisions).       Again, we must

conclude that the challenged conduct is not so outrageous that no competent attorney

would have engaged in it. See Goodspeed, 187 S.W.3d at 392. It is appellant's burden

to show that trial counsel rendered deficient representation because of his failure to

cross-examine the State's witness. See Davis v. State, 831 S.W.2d 839, 843 (Tex.

App.—Dallas 1992, pet. ref'd). We cannot conclude that Castillo has done so in this

instance.

      7. Closing Argument at Punishment Hearing

      Finally, Castillo contends that counsel was ineffective because he presented an

inadequate closing argument during the punishment phase of the trial, amounting to only

two pages of the reporter's record. He complains that nowhere in closing argument did


                                             20
counsel emphasize Castillo's good character traits or even summarize the testimony of

the defense's punishment witnesses. See Moore v. State, 983 S.W.2d 15, 23-24 (Tex.

App.—Houston [1st Dist.] 1998, no pet.) (concluding that counsel's performance was

ineffective when he made no investigation regarding possible mitigation evidence which

"rendered the adversarial process presumptively unreliable at punishment," failed to

investigate appellant's background, and presented a closing argument which failed to

disclose any of appellant's good character traits). Castillo urges this Court to find that

there existed no strategic reason not to emphasize good character traits elicited during

the defense's case in chief and that counsel's closing argument was inadequate and

ineffective.

       Counsel's argument occurred at the punishment stage of Castillo's trial, after his

guilt had been determined by the jury sitting to decide his penalty. Throughout his

argument, trial counsel extensively argued compassion for the Castillo family.         He

reminded the jurors that their job was not to hand out vengeance but to hand out justice

and that, in this case, justice would be served by sentencing Castillo to the minimum

twenty-five years and not keeping him in prison any longer. Castillo overlooks these

aspects of his trial counsel's argument so that he can highlight what he claims is missing,

specifically an argument about his good character traits.

       It is also plausible that counsel believed the best strategy might be brevity and

openness in an attempt to mitigate punishment. See Flemming v. State, 949 S.W.2d

876, 881 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (finding counsel may have

believed the best strategy in the closing argument was to be brief and appear open and


                                            21
honest). The record in this case is silent regarding counsel's strategy with respect to the

content of his closing argument.

C. Summation

        In summary, we conclude that Castillo has not overcome the presumption that trial

counsel's actions were within the wide range of reasonable professional assistance.

Strickland, 466 U.S. at 688, 690-94; Salinas, 163 S.W.3d at 740. Moreover, to the extent

any deficiency existed, Castillo has not demonstrated there was a reasonable probability

that, but for counsel's deficient performance, the result of the proceeding would have

been different. Strickland, 466 U.S. at 688, 694. Based on the record before us, we

conclude that Castillo has failed to show ineffective assistance of counsel.8 We overrule

Castillo's fifth issue.

                                           IV. Conclusion

        We affirm the judgment of the trial court.



                                                                          NELDA V. RODRIGUEZ
                                                                          Justice

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

Delivered and filed the 31st
day of August, 2011.



        8
           Counsel should ordinarily be accorded an opportunity to explain his actions before being
condemned as unprofessional and incompetent. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.
App. 2003) (en banc). Because the reasonableness of trial counsel's choices often involve facts that do
not appear in the appellate record, an application for writ of habeas corpus is the more appropriate vehicle
to raise ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.
App. 2002) (en banc).

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