Ex Parte Thomas Edward Castillo

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-13-00615-CR
EX PARTE Thomas Edward CASTILLO
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2010CR11317
Honorable Philip A. Kazen, Jr., Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: April 16, 2014
REVERSED AND REMANDED
Thomas Edward Castillo was charged with three offenses related to his alleged actions on
August 15, 2010. The first indictment charged him with capital murder, which the State alleged he
committed by intentionally causing the death of Rogelio Nava while in the course of committing
or attempting to commit the offense of burglary of Nava’s home. The second indictment alleged
two counts: Count I alleged that Castillo committed the aggravated assault of Carol Sanchez, and
Count II alleged that Castillo committed burglary by intentionally and knowingly entering Nava’s
habitation without his consent and by attempting to commit and committing aggravated assault
against Sanchez. Defense counsel moved to consolidate trials on the two indictments and to have
the State specify in the capital murder indictment how the underlying burglary was committed.
The State objected. The trial court agreed with the State and denied defense counsel’s motions.
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Thus, the first trial proceeded on the capital murder indictment, with the counts alleged in the other
indictment set for a later trial. At the charge conference in the first trial, defense counsel requested
that the lesser-included offenses of murder and manslaughter be submitted to the jury. The State
objected to any lesser-included offenses being submitted, and the trial court denied defense
counsel’s request. Thus, the jury was instructed to answer only one question: whether Castillo
committed capital murder. After hearing all the evidence in the first trial, the jury found that
Castillo was not guilty of capital murder.
After Castillo was acquitted of capital murder in the first trial, trial was set on the two
counts in the second indictment: burglary and aggravated assault. Castillo then filed a pretrial
application for writ of habeas corpus, asserting that the State’s prosecution on the second
indictment violates the Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the
Constitution. The trial court denied relief and Castillo appealed. Because we conclude that
Castillo’s constitutional rights against double jeopardy are violated by the State’s prosecution on
the remaining two counts, we reverse the trial court’s order denying his pretrial writ of habeas
corpus and remand the cause with instructions to dismiss both counts.
BACKGROUND
Castillo and Carol Sanchez were married in 2000. Ten years later, in April 2010, Sanchez
met Rogelio Nava. The following month, Sanchez and Castillo separated, and Sanchez moved into
Nava’s home. In the early morning hours of August 15, 2010, Sanchez and Nava were stabbed by
Castillo in Nava’s home. Nava subsequently died from his injuries. Castillo was charged in two
indictments. In Cause Number 2010-CR-11316, he was charged with capital murder:
on or about the 15th day of August 2010, THOMAS CASTILLO, hereinafter
referred to as defendant, did intentionally cause the death of an individual, namely,
Rogelio Nava, hereinafter referred to as complainant, by CUTTING AND
STABBING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY,
A KNIFE, THAT IN THE MANNER OF ITS USE AND INTENDED USE WAS
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CAPABLE OF CAUSING DEATH AND SERIOUS BODILY INJURY, and the
defendant was in the course of committing or attempting to commit the offense of
BURGLARY OF A HABITATION owned by Rogelio Nava;
AGAINST THE PEACE AND DIGNITY OF THE STATE.
In Cause No. 2010-CR-11317, Castillo was charged in two counts with aggravated assault and
burglary:
COUNT I
on or about the 15th day of August 2010, THOMAS CASTILLO, hereinafter
referred to as defendant, did intentionally, knowingly and recklessly cause serious
bodily injury to Carol Sanchez by CUTTING AND STABBING THE
COMPLAINANT WITH A DEADLY WEAPON, NAMELY A KNIFE, THAT IN
THE MANNER OF ITS USE AND INTENDED USE WAS CAPABLE OF
CAUSING DEATH AND SERIOUS BODILY INJURY, and Carol Sanchez was a
member of the defendant’s family;
COUNT II
on or about the 15th day of August 2010, THOMAS CASTILLO did intentionally
and knowingly enter a habitation, and therein attempted to commit and committed
the felony offense of AGGRAVATED ASSAULT, against Carol Sanchez, without
the effective consent of Rogelio Nava, the owner;
AGAINST THE PEACE AND DIGNITY OF THE STATE.
Castillo moved to set aside the capital murder indictment, arguing that the capital murder
indictment failed to allege “the particular type of burglary, the specific acts defendant allegedly
committed, or the constituent elements of burglary.” At the hearing on the motion, defense counsel
urged that the indictment should have to “specify the particular type of burglary” with which
Castillo is being charged under section 30.02(a) of the Texas Penal Code. The trial court asked the
prosecutor if the State had “any objection to specifying what type of burglary,” and the prosecutor
responded that the indictment was sufficient as it was. The trial court then denied Castillo’s motion
to set aside the indictment.
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As a pretrial matter, Castillo also moved to consolidate Cause No. 2010-CR-11316 (the
capital murder count) with Cause No. 2010-CR-11317 (the burglary and aggravated assault
counts), arguing that the charges arose out of the same alleged criminal episode, occurred at the
same time, and were inextricably intertwined. The prosecutor responded that the State objected to
any consolidation and that “the defense can’t force us to consolidate.” The prosecutor stated, “It
is, in essence, the State’s choice, and we would like to sever these, keep them separate, they were
indicted separately, and try Mr. Castillo for the capital murder first.” Defense counsel objected
again, stating that he was “notifying everybody that we think Mr. Castillo, not only his rights to
due process would be violated, but if there is a subsequent trial, that his rights to double jeopardy
under the United States and State’s Constitutions would also be violated.” The trial court denied
Castillo’s motion to consolidate.
In his brief, Castillo points out that during pretrial hearings, the prosecutor made the
following arguments, which admitted all three counts (the capital murder, the burglary, and the
aggravated assault) were part of the same criminal transaction:
• [W]e are alleging the – in very legal terms, an aggravated assault with a deadly
weapon against Carol [Sanchez], which again is – will come out in the facts of the
case, meaning that he is stabbing her with a knife, causing her serious bodily injury.
That’s part of the State’s case. . . . It’s the same criminal transaction.
• We allege again same date. We say that he entered a habitation and therein
committed the felony offense of aggravated assault against Carol [Sanchez]; again,
same criminal transaction, same facts.
• [A]gain, August 15, 2010, defendant strangled and choked Carol Sanchez. That’s
part of the offense. It’s part of within the same criminal transaction. It’s what he
did. She is going to testify to that as far as what was done to her.
• [T]hat he broke her teeth in the course of committing his aggravated assault against
her. Again, same criminal transaction, same episode, same facts. That’s what she
will testify to. That’s what was done to her as part of the capital murder.
(emphasis added).
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Carol Sanchez was the first witness to testify at the capital murder trial. According to
Sanchez, she was married to Castillo when she met Nava in April 2010. The next month, she
separated from Castillo and moved in with Nava. However, she continued to have sexual relations
with Castillo. Sanchez testified that on August 14, 2010, she was at a sports banquet with Castillo
and their kids when Castillo threatened to kill her. She left and went to Nava’s home. Later that
evening, she and Nava went to a bar and returned to his home around 2:00 a.m. Sanchez testified
that they had started “playing around in the car,” and she ran into Nava’s home nude. She and
Nava then went to his bedroom and were beginning to have sexual relations when Castillo attacked
them. Nava was hit in the back first. According to Sanchez, Castillo then stabbed her on her left-
hand side.
Sanchez testified that she recognized the attacker as Castillo. When Castillo ran to the
kitchen to get more knives, Sanchez ran to the door. Castillo threw her on the couch and punched
her over and over again. He then ran back to the kitchen, and Sanchez was able to get out the door
to the porch. According to Sanchez, Castillo came out with two knives. He used one to stab her,
but broke the handle of the knife. He then bit her finger. When Castillo ran back into the house,
Sanchez was able to run to a neighbor’s home for help. Although the neighbor would not open the
door so that Sanchez could enter, she did call 911. Sanchez then heard Castillo leaving in his truck.
When EMS arrived, she told them to go into Nava’s home because she thought Castillo had killed
Nava. In all, Sanchez suffered eleven stab wounds. Castillo also broke her arm. As a result of her
injuries, she was hospitalized for a week.
Oscar Lua, a friend of Castillo’s, testified that on August 14, 2010, Castillo called him
around 8:30 p.m., and was distraught and “hot-headed.” Lua then met with Castillo in person.
Castillo told Lua that he “couldn’t take it anymore.” According to Lua, Castillo said that he wanted
to “take out Carol [Sanchez] for what she ha[d] done.” Castillo said that because Sanchez was not
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a threat, he was going to attack the boyfriend first. Castillo told Lua that he had been at a banquet
with Sanchez who had told him that she did not want anything to do with him anymore. Lua
testified that after he talked to Castillo, Castillo calmed down and “came back to Earth.” Later, in
the early hours of the morning, Lua received another telephone call from Castillo who claimed he
needed help. He told Lua that he had stabbed Sanchez and her boyfriend. Lua went to Nava’s
home. When he saw police officers at the home, he stopped and told one of the officers that he
thought they were looking for his friend Castillo.
A paramedic testified to the number and type of stab wounds suffered by Sanchez.
Photographs of her injuries and medical records were introduced in evidence. There was also
testimony that Nava was found dead in his home. Photographs from the crime scene were
introduced in evidence. The photographs depict blood all over the porch; Nava’s nude body lying
on the floor of his bedroom; a bloody knife with a handle missing; blood on the floor in the home;
another knife with its handle detached on Nava’s bed; knives on the floor in the kitchen area; and
open drawers in the kitchen. The medical examiner found that Nava had suffered from (1) one stab
wound that penetrated through his ribs, lung, diaphragm, and aorta; (2) one stab wound that
penetrated through his liver, mesentery, and small bowel; (3) two incised wounds to the head; (4)
one stab wound to the posterior upper back; and (5) incised wound to the left hand. The medical
examiner concluded that Nava died as a result of multiple sharp force injuries to the trunk and that
the manner of his death was a homicide.
At the close of the State’s evidence, Castillo moved for an instructed verdict, arguing that
there was no evidence to show that he intentionally caused the death of Nava or that he had
committed the predicate offense of burglary underlying the capital murder charge. The court
denied the motion. The defense then introduced texts messages between Sanchez and Castillo
during the time of their separation, showing Sanchez propositioning Castillo for sex.
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At the charge conference, Castillo requested the submission of the lesser-included offenses
of murder and manslaughter on two theories: (1) he argued that there was a question whether he
had intentionally caused the death of Nava; and (2) he argued that there was a question whether he
had committed the underlying offense of burglary. The State opposed the lesser-included offenses
being submitted and the trial court denied the requests.
The application paragraph of the charge instructed the jury the following:
Now, if you find from the evidence beyond a reasonable doubt that on or about the
15th day of August 2010 in Bexar County, Texas, the defendant, Thomas Castillo,
did intentionally cause the death of an individual, namely, Rogelio Nava, by cutting
or stabbing Rogelio Nava with a deadly weapon, namely, a knife, that in the manner
of its use or intended use was capable of causing death or serious bodily injury, and
Thomas Castillo was in the course of committing or attempting to commit the
offense of burglary of a habitation owned by Rogelio Nava, then you will find the
defendant guilty of capital murder as charged in the indictment.
If you do not so find beyond a reasonable doubt, or if you have a reasonable doubt
thereof, you will find the defendant not guilty.
In applying the above paragraph, the jury charge instructed the jury on the offenses of murder;
capital murder; burglary; and aggravated assault:
• Our law provides that a person commits the offense of murder if he intentionally
causes the death of an individual.
• A person commits capital murder when such person intentionally commits the
murder in the course of committing or attempting to commit the offense of
burglary.
• Our law provides that a person commits the offense of burglary if, without the
effective consent of the owner, the person enters a habitation with intent to commit
an aggravated assault, or enters a habitation and commits or attempts to commit an
aggravated assault.
• Our law provides that a person commits the offense of aggravated assault if the
person intentionally or knowingly causes bodily injury to another, and uses or
exhibits a deadly weapon during the commission of such assault.
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During closing argument, defense counsel argued that while Castillo killed Nava, he did
not commit capital murder. After discussing the text messages between Castillo and Sanchez,
defense counsel argued that Castillo believed he and Sanchez were reuniting:
And she told him that night. She slammed the door shut. She told him, “It’s him,
not you.” He realized then it’s over, and he snapped and he did wrong, and there is
no question about it. And don’t let them try to stand up in here and say that we are
trying to justify that or say it was right or that it was not a crime. We are not saying
that. He committed a crime. He committed several crimes, but the one crime he did
not commit is capital murder, because he didn’t intentionally kill Rogelio Nava,
and that’s the crime they have charged. . . . Carol [Sanchez] was the only one who
had the power to hurt him, to disappoint him, and he did it all wrong, but Carol was
his focus, and he had no focus left for Rogelio Nava, and he had no intent to hurt
Mr. Nava. He went over there; he saw them engaging in sex. He hit the man in the
back with the knife, got him off, and then he attacked and committed a crime against
Carol. And how differently they were. Let’s talk about the sharp force injuries. . . .
That’s what Dr. Peacock told you was the one necessarily fatal wound. But think
about how it happened. Use your common sense, and I know you will. Went in the
back. Who intentionally kills somebody by stabbing them in the back? It happened
to penetrate the aorta and there was rapid bleeding and loss of life, but is that the
way you intend to kill somebody? You cut their throat.
The jury returned a verdict of not guilty of capital murder. Thus, in Cause No. 2010-CR-11316,
the trial court signed a judgment of acquittal.
After the judgment of acquittal was signed, Castillo filed a pretrial application for writ of
habeas corpus in Cause No. 2010-CR-11317 (the burglary and aggravated assault case), asserting
that trial on this indictment would violate the Double Jeopardy Clause of the Fifth and Fourteenth
Amendments to the United States Constitution. At the hearing on the application, Defendant’s
Exhibits A through I were admitted:
• Exhibit A: True Bill of Indictment in Cause No. 2010-CR-11316 (capital murder
case);
• Exhibit B: True Bill of Indictment in Cause No. 2010-CR-11217 (burglary &
aggravated assault case);
• Exhibit C: Defendant’s Motion to Set Aside the Indictment Number One in Cause
No. 2010-CR-11316 (capital murder);
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• Exhibit D: Reporter’s Record of the trial on the merits in Cause No. 2010-CR-
11316 (capital murder);
• Exhibit E: Defendant’s Objections to Evidence Pursuant to Rule 103(a)(1) in Cause
No. 2010-CR-11316 (capital murder);
• Exhibit F: Defendant’s Special Requested Jury Instruction Number One in Cause
No. 2010-CR-11316 (capital murder);
• Exhibit G: Defendant’s Special Requested Jury Instruction Number Three in Cause
No. 2010-CR-11316 (capital murder);
• Exhibit H: Charge of the Court in Cause No. 2010-CR-11316 (capital murder); and
• Exhibit I: Judgment of Acquittal by Jury in Cause No. 2010-CR-11316 (capital
murder).
The trial court also took judicial notice of its files in both cause numbers. After hearing argument
of counsel, the trial court denied relief. Castillo then brought this appeal.
DOUBLE JEOPARDY
The Double Jeopardy Clause protects against (1) a second prosecution for the same offense
after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple
punishments for the same offense. Ex parte Denton, 399 S.W.3d 540, 545 (Tex. Crim. App. 2013).
Here, Castillo argues that he is being prosecuted a second time for the same offense after acquittal.
“It is well-settled that upon conviction or acquittal in a trial court the Double Jeopardy Clause bars
retrial for the ‘same’ offense.” Stephens v. State, 806 S.W.2d 812, 816 (Tex. Crim. App. 1990)
(citing Brown v. Ohio, 432 U.S. 161, 165 (1977)). Thus, we must consider whether the burglary
and aggravated assault charges in this case constitute the “same offense” as the capital murder
charge.
“For double jeopardy purposes, the same offense means the identical criminal act, not the
same offense by name.” Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998)
(citations omitted). The Texas Court of Criminal Appeals has explained that the “Legislature has
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the power to establish and define crimes and few, if any, limitations are imposed upon this power
by the Double Jeopardy Clause.” Garfias v. State, No. PD-1544-12, 2014 WL 714718, at *2 (Tex.
Crim. App. Feb. 26, 2014). In determining whether a defendant, after acquittal, is being prosecuted
for the same offense, we identify the appropriate “unit of prosecution” when the offenses are
alternative means of committing the same statutory offense. See id.; Ex parte Cavazos, 203 S.W.3d
333, 336 (Tex. Crim. App. 2006). We apply the “same elements test” established in Blockburger
when the offenses in question come from different statutory sections. See Garfias, 2014 WL
714718, at *2.
The Blockburger test requires us to determine whether each of the offenses require a proof
of an element that the other does not. Id. at *3. “In doing so, [we] must focus on the elements
alleged in the charging instrument–not on the offense as defined in the Penal Code.” Id. “Under
this so-called cognate-pleadings approach, double-jeopardy challenges can be made even against
offenses that have different statutory elements, if the same facts required to convict are alleged in
the indictment.” Id. Thus, a lesser-included offense is considered constitutionally the “same
offense” as a greater offense for purposes of double jeopardy. See Ex parte Denton, 399 S.W.3d
at 545-46. If a person is convicted and sentenced for both a greater and a lesser-included offense,
the same conduct is punished twice – once for the basic conduct and a second time for that conduct
plus more. Id. at 545; see In re Nielsen, 131 U.S. 176 (1889) (holding that convicting a man for
bigamy and then prosecuting him for committing adultery, a continuous offense, with the same
wife on the next day after the end of the bigamy offense violated double jeopardy because adultery
was a necessary part of, and a lesser-included offense of, bigamy); January v. State, 695 S.W.2d
215 (Tex. App.—Corpus Christi 1985) (holding that convictions in one trial for kidnapping and
attempted capital murder in the course of kidnapping were held to violate the double jeopardy
clause because the kidnapping was a necessary part of the attempted capital murder of the same
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victim), aff’d, 732 S.W.2d 632 (Tex. Crim. App. 1987). Similarly, the Texas Court of Criminal
Appeals has explained that because the “Double Jeopardy Clause bars a second prosecution that
would require the accused to ‘run the gauntlet’ again,” “the Double Jeopardy Clause bars a
subsequent prosecution for a lesser-included offense.” Stephens, 806 S.W.2d at 819.
The Texas Court of Criminal Appeals has further explained that the Blockburger test is
only a starting point and a rule of statutory construction; it is not the exclusive indicator of a double
jeopardy violation. See Garfias, 2014 WL 714718, at *3. That is, the Blockburger test “cannot
allow two punishments for a single course of conduct when the Legislature intended to authorize
only one.” Id. Thus, in Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999), the court set
forth a list of non-exclusive factors designed to help courts in the absence of clear guidance from
the Legislature:
whether the offenses provisions are contained within the same statutory
section; whether the offenses are phrased in the alternative; whether the
offenses are named similarly; whether the offenses have common
punishment ranges; whether the offenses have a common focus; whether
the common focus tends to indicate a single instance of conduct; whether
the elements that differ between the two offenses can be considered the
same under an imputed theory of liability that would result in the offenses
being considered the same under Blockburger; and whether there is
legislative history containing an articulation of an intent to treat the offenses
as the same or different for double-jeopardy purposes.
The court has also explained that when making a Blockburger “elements” analysis, courts should
determine the allowable unit of prosecution for the offenses in question. Garfias, 2014 WL
714718, at *3. “Although such a determination is a necessary step when a multiple-punishments
claim deals with two offenses from the same statutory section,” the court noted that “even in an
‘elements’ analysis, such a determination can be indicative of legislative intent.” Id.
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DISCUSSION
Castillo argues that because he was acquitted of the capital murder of Rogelio Nava, the
Double Jeopardy Clause bars the State’s prosecution of him in this cause for the burglary of Nava’s
home and for the aggravated assault of Sanchez. Pursuant to the Penal Code, a person commits
capital murder if he commits murder as defined under section 19.02(b)(1) and the person
intentionally commits the murder in the course of committing or attempting to commit burglary.
See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013). Section 19.02(b)(1), in turn,
provides that a person commits murder if he intentionally or knowingly causes the death of an
individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2011).
The indictment in the capital murder case alleged that on or about August 15, 2010, Castillo
intentionally caused the death of Rogelio Nava by cutting and stabbing the complainant with a
deadly weapon, namely a knife, that in the manner of its use and intended use was capable of
causing death and serious bodily injury and Castillo was in the course of committing or attempting
to commit the offense of burglary of a habitation owned by Rogelio Nava. Thus, part of the capital
murder offense was that Castillo was in the course of committing or attempting to commit the
offense of burglary of a habitation owned by Rogelio Nava.
Pursuant to the Penal Code, a person commits burglary if, without the effective consent of
the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the
public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building
or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft,
or an assault.
TEX. PENAL CODE ANN. § 30.02(a) (West 2011).
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Count II of the indictment in this case charged that on or about August 15, 2010, Castillo
did intentionally and knowingly enter a habitation, and therein attempted to commit and committed
the felony offense of aggravated assault, against Carol Sanchez, without the effective consent of
Rogelio Nava, the owner. Count I of the indictment charged Castillo with the aggravated assault
of Carol Sanchez. Thus, Castillo points out that his rights against double jeopardy are violated
because the aggravated assault count is subsumed within the burglary count, which is also
subsumed within the capital murder count. In other words, he argues that Counts I and II of this
cause are lesser-included offenses of the capital murder charge. See Sanchez v. State, 745 S.W.2d
353, 357 (Tex. Crim. App. 1998) (explaining that aggravated assault may be a lesser-included
offense of attempted capital murder); Banda v. State, 890 S.W.2d 42, 60 n.13 (Tex. Crim. App.
1994) (explaining that burglary and aggravated sexual assault may be lesser-included offenses of
capital murder).
A. Count II Burglary of Nava’s Home
The first issue is whether burglary of a habitation as charged in Count II is a lesser-included
offense of the capital murder charge of which Castillo has been acquitted. An offense is a lesser-
included offense if (1) it is established by proof of the same or less than all the facts required to
establish the commission of the offense charged; (2) it differs from the offense charged only in the
respect that a less serious injury or risk of injury to the same person, property, or public interest
suffices to establish its commission; (3) it differs from the offense charged only in the respect that
a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to
commit the offense charged or an otherwise included offense. TEX. CODE CRIM. PROC. ANN. art.
37.09 (West 2006).
The State argues that the burglary charge in Count II is not a lesser-included offense of the
capital murder charge because the capital murder indictment did not specify how the burglary was
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committed. Thus, the State argues that the aggravated assault victim underlying the burglary in the
capital murder indictment could have been Rogelio Nava, and not Carol Sanchez.
The problem with the State’s argument is that Castillo cannot be convicted of two burglary
offenses under these facts. A conviction for a burglary with Nava being named as the victim of the
underlying assault and a conviction for a burglary with Sanchez being named as the victim of the
underlying assault would violate double jeopardy. In Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex.
Crim. App. 2006), the Texas Court of Criminal Appeals explained that the allowable unit of
prosecution in a burglary of a habitation is the unlawful entry, not the complainant. The court
explained that “the gravamen of a burglary is the entry without the effective consent of the owner
and with the requisite mental state.” Id. “[W]hen a burglary is committed, the harm results from
the entry itself.” Id. “The offense is complete once the unlawful entry is made, without regard to
whether the intended theft or felony is also completed.” Id. While the allowable unit of prosecution
for an assaultive offense is each complainant, burglary “is not an assaultive offense.” Id. “[R]ather,
its placement within Title 7 indicates the legislature determined burglary to be a crime against
property.” Id. “Thus, the complainant is not the appropriate allowable unit of prosecution in a
burglary; rather, the allowable unit of prosecution in a burglary is the unlawful entry.” In Cavazos,
the defendant was charged with two counts of burglary of a habitation, arising from the same
incident but alleging different complainants. Id. at 335. Because the allowable unit of prosecution
was the unlawful entry and not the complainant, the court of criminal appeals held the defendant’s
two convictions of burglary violated double jeopardy “because he was punished multiple times for
a single unlawful entry.” Id. at 338.
Here, the State is seeking to prosecute Castillo multiple times for a single unlawful entry.
It already prosecuted him for one unlawful entry in the capital murder trial. It cannot do so again
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in this case. Thus, the State’s prosecution of Castillo for the burglary of Nava’s home violates the
Double Jeopardy Clause of the Constitution.
B. Aggravated Assault of Carol Sanchez
With regard to Count I of the indictment, which charged the aggravated assault of Sanchez,
the State again argues that the aggravated assault in Count I is not a lesser-included offense of the
capital murder because the aggravated assault victim underlying the burglary in the capital murder
indictment could have been Rogelio Nava, and not Carol Sanchez. Thus, theoretically, the capital
murder charge could have alleged Nava as the aggravated assault victim in the underlying burglary,
which would be a different offense from Count I’s aggravated assault of Sanchez. Under such a
scenario, there would be two different victims and no double jeopardy violation because the State
would not need to prove the aggravated assault of Sanchez to prove the capital murder.
The problem, however, with the State’s argument is that the State did not make an election
in the capital murder trial, and the language of the capital murder indictment and jury charge was
sufficiently broad to have included either Sanchez or Nava as the assault victim. The capital murder
indictment broadly charged Castillo with committing capital murder by intentionally causing the
death of Nava while “in the course of committing or attempting to commit the offense of burglary
of a habitation owned by Rogelio Nava.” At a pretrial hearing, Castillo argued that the capital
murder indictment should have to “specify the particular type of burglary” charged. The State
refused, and the trial court denied Castillo’s motion. The jury charge in the capital murder case
broadly asked the jury to determine whether Castillo intentionally caused the death of Nava while
“in the course of committing or attempting to commit the offense of burglary of a habitation owned
by Rogelio Nava.” The jury was instructed that “a person commits the offense of burglary if,
without the effective consent of the owner, the person enters a habitation with intent to commit an
aggravated assault, or enters a habitation and commits or attempts to commit an aggravated
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assault.” Evidence that Castillo had committed an aggravated assault against Nava and Sanchez
was presented at the capital murder trial. Thus, the jury charge authorized the jury to find that
Castillo committed the burglary underlying the capital murder allegation if it believed beyond a
reasonable doubt that he committed aggravated assault against either Nava or Sanchez.
The court of criminal appeals has explained that “[i]f evidence of more than one offense is
admitted [at a trial] and a conviction for either could be had under the indictment, and neither the
State nor the court elects” which offense it is proceeding with to verdict, the Double Jeopardy
Clause bars later prosecution of offenses for which proof was offered at trial. Ex parte Goodbread,
967 S.W.2d 859, 860-61 (Tex. Crim. App. 1998) (citations omitted).
For example, in Ex parte Pruitt, 233 S.W.3d 338 (Tex. Crim. App. 2007), the court of
criminal appeals was faced with a situation where the evidence raised multiple offenses committed
by the defendant. In his first trial, the defendant was charged with sexual assault, which was alleged
to have occurred on or about August 15, 2000, and aggravated sexual assault, which was alleged
to have occurred on or about June 15, 1997. Id. at 340. At trial, the complainant testified that the
defendant first penetrated her sexual organ with his penis some time after her eighth-grade school
year and before her fourteenth birthday in the summer of 1998. Id. She testified that the defendant
last penetrated her sexual organ with his penis in August or September of 2000 when she was
sixteen years old. Id. She also testified that the defendant penetrated her sexual organ with his
penis “at least once a month” between the first incident and the last incident. Id. The State made
no formal election of which incidents of penetration it would rely upon for conviction. Id. at 341.
The jury charge instructed the jury to convict the defendant of count I of the offense if it found,
among other things, that the defendant committed the offense “on or about” August 15, 2000. Id.
at 343. With respect to count II, the jury was instructed to convict the defendant if it found, among
other things, that the defendant committed the offense “on or about” June 15, 1997. Id. The jury
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was also instructed that the State was “not required to prove the exact date alleged in the
indictment, but may prove the offense, if any, to have been committed at any time prior to the
presentment of the indictment, so long as said indictment is presented within ten years from the
18th birthday of the victim of the offense.” Id. The jury acquitted the defendant on both counts. Id.
Subsequently, the State charged the defendant with two counts of sexual assault of the same
complainant when she was younger than seventeen years of age, alleging that the defendant
committed the offense “on or about” June 15, 1999, and July 15, 1999, respectively. Id. The
defendant filed a pretrial writ of habeas corpus claiming that this new prosecution was jeopardy-
barred because of the prior acquittal. Id. The court of criminal appeals agreed with the defendant.
See id. at 346-48. It noted that in the prior trial, the defendant did not demand an election at the
close of the State’s evidence or at any other time. Id. at 346. The court explained that “this case
presents the less-common scenario where the State is claiming to have made an election in the
absence of a request by the defendant,” seeking “‘to avoid the bite of our case law’ that a failure
to have made an election in the first trial means that every instance of penetration presented at
this trial is jeopardy-barred.” Id. (emphasis added). In doing so, the court cited Ex parte
Goodbread, 967 S.W.2d 859, 860-61 (Tex. Crim. App. 1998), for the proposition that “if ‘evidence
of more than one offense is admitted and a conviction for either could be had under the indictment,
and neither the State nor the court elects, a plea of former conviction [or acquittal] is good upon a
prosecution based upon one of said offenses, it being uncertain for which one the conviction [or
acquittal] was had.’” Ex parte Pruitt, 233 S.W.3d at 347 (quoting Goodbread, 967 S.W.2d at 860-
61) (emphasis added) (alteration in original).
The court emphasized that although portions of the record in the first trial “may indicate
that the State ‘focused’ on the first and last incidents of penetration and that, if forced to elect, it
probably would have picked these two incidents, the record nevertheless reflects that the jury was
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still authorized to convict appellant based on the other incidents of penetration.” Id. According to
the court, “[i]t is impossible to determine with any certainty which specific incidents of penetration
that the jury actually acquitted appellant of in the prior trial.” Id. “If the State did make an election
at the prior trial, it did not do so with the required specificity.” Id. “If, as in this case, a reviewing
court finds itself in the position of having to guess whether the State made an election, then it
should decide that there was no election.” Id. Because the State had not made an election in the
first trial, the court of criminal appeals concluded that the incidents of penetration alleged in the
current indictment were jeopardy-barred. Id.
Similarly, here, the capital murder indictment in the first trial did not specify in the
underlying burglary allegation the identity of the aggravated assault complainant. The evidence at
the first trial raised both Nava and Sanchez as aggravated assault complainants. The State did not
make an election, and the jury charge authorized the jury to find that Castillo committed the
burglary underlying the capital murder allegation if it believed beyond a reasonable doubt that
Castillo entered Nava’s home and committed or attempted to commit an aggravated assault against
either Nava or Sanchez. Thus, any later prosecutions for the aggravated assault of Sanchez is
jeopardy-barred as long as aggravated assault is a lesser-included offense of the burglary and thus
the capital murder.
The State points to our opinion in Rangel v. State, 179 S.W.3d 64 (Tex. App.—San Antonio
2005, pet. ref’d), in support of its argument that Count I’s aggravated assault charge is not a lesser-
included offense of burglary. In Rangel, the first count of the indictment charged that Rangel had
intentionally or knowingly entered the habitation of Hatzenbuehler and attempted to commit or
committed the felony offense of aggravated assault. Id. at 70. The second count charged that
Rangel intentionally, knowingly, or recklessly caused bodily injury to Medrano by stabbing the
said Medrano with a knife. Id. We explained that under Blockburger’s “same elements” test,
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burglary as charged required proof of a fact that the aggravated assault charge did not. Id. at 71.
“However, to prove the burglary charge, the State had to necessarily prove the elements of
aggravated assault.” Id. “Thus, it would seem that the aggravated assault charge does not require
proof of a fact that burglary does not.” Id. Because the indictment charging burglary in that case
required the State to necessarily show the commission of an aggravated assault, we held that
Rangel’s conviction and sentences on both charges violated his double jeopardy rights. Id. at 73.
The State points to the portion of the opinion where we noted that aggravated assault is not
necessarily a lesser-included offense of burglary by entering a habitation with the intent to commit
aggravated assault, as under that scenario the State would not be required to prove that an actual
aggravated assault occurred. Id. at 72. The State argues the same is possibly true in this case.
However, as noted above, the problem with the State’s argument is that the capital murder
indictment and the jury charge contained broad language. The indictment did not specify how the
underlying burglary was committed. And, the jury charge broadly instructed the jury in the
disjunctive:
Our law provides that a person commits the offense of burglary if, without the
effective consent of the owner, the person enters a habitation with intent to commit
an aggravated assault, or enters a habitation and commits or attempts to
commit an aggravated assault.
Thus, the jury charge in the capital murder case allowed the jury to convict if it found Castillo had
entered a habitation with intent to commit an aggravated assault or entered a habitation and
committed or attempted to commit an aggravated assault. And, evidence was presented at the
capital murder trial to support either allegation. Thus, the State is now jeopardy-barred from
prosecuting Castillo for the aggravated assault of Sanchez. See Ex parte Pruitt, 233 S.W.3d at 347;
Ex parte Goodbread, 967 S.W.2d at 860-61.
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CONCLUSION
Because the Double Jeopardy Clause of the Constitution bars the State from prosecuting
Castillo on Counts I and II of the indictment, we reverse the trial court’s order denying his pretrial
writ of habeas corpus and remand the cause with instructions to dismiss both counts.
Karen Angelini, Justice
Publish
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