Arnulfo Jose Castillo v. State ( 2018 )


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  • Opinion filed June 28, 2018
    In The
    Eleventh Court of Appeals
    __________
    No. 11-17-00218-CR
    __________
    ARNULFO JOSE CASTILLO, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 32nd District Court
    Nolan County, Texas
    Trial Court Cause No. 12057
    MEMORANDUM OPINION
    The jury found Appellant, Arnulfo Jose Castillo, guilty of the second-degree
    felony offense of robbery.1 The jury assessed punishment at confinement for five
    years. The trial court sentenced Appellant in accordance with the verdict and also
    ordered that Appellant pay court costs and attorney’s fees.
    1
    See TEX. PENAL CODE ANN. § 29.02 (West 2011).
    In a single issue on appeal, Appellant argues that the trial court erred when it
    denied his request to provide the jury with instructions on the lesser included
    offenses of misdemeanor theft and misdemeanor assault. We affirm.
    I. Evidence at Trial
    On the day of the offense, Appellant, a woman, and a child went to a Walmart
    in Sweetwater. Benjamin Alexander, who was employed by Walmart as an “asset
    protection associate” at the time, saw Appellant and the woman grab multiple items
    from the laundry detergent aisle, specifically “Tide Pod packs” and “dryer bead[s].”
    Alexander then followed them through the store.
    In another part of the store, Alexander saw Appellant place some of the items
    into the pockets of his pants and “big jacket,” and he saw the woman place some of
    the items in her “big purse.”
    Appellant, along with the woman and the child, walked toward the garden
    center exit. The outdoor area of the garden center is enclosed by a metal fence and
    contains a gate that leads to the parking lot. Walmart considers the gate the “last
    point of sale” for the garden center. Alexander testified that “any shoplifter has to
    bypass the last point-of-sale [for Walmart] to consider it as a theft.” Appellant and
    the woman, along with the child, walked out the gate without paying for the
    concealed merchandise.
    As Appellant, the woman, and the child moved just outside the gate,
    Alexander approached them. Alexander positioned himself in front of the woman
    and attempted to use his body “to push her back into the store.” Appellant “had
    already walked really far out” into the parking lot, so Alexander “hollered” at
    Appellant to come back. Appellant ran toward his vehicle.2 But, as Alexander was
    pulling the woman back into the gate, Appellant returned.
    2
    Alexander believed that Appellant “might have” placed some of the stolen items in his vehicle,
    but he could not tell if Appellant entered his vehicle or not.
    2
    According to Alexander, Appellant tried to attack him and “started trying to
    rip my arm away from the other lady and started swinging his arms at me.”
    Appellant then grabbed the child and left the Walmart property. The woman was
    apprehended, and Appellant never came back. The police found stolen merchandise
    in Appellant’s vehicle and on the ground where the struggle ensued between
    Alexander and Appellant.
    II. Analysis
    In a single issue, Appellant claims the trial court erred when it denied his
    request that the trial court instruct the jury on the lesser included offenses of
    misdemeanor theft and misdemeanor assault.3 We apply a two-step analysis to
    determine whether a defendant is entitled to a lesser included offense in the jury
    charge. Hall v. State, 
    158 S.W.3d 470
    , 473 (Tex. Crim. App. 2005). First, we
    “determine whether the lesser offense actually is a lesser-included offense of the
    offense charged as defined by article 37.09” of the Texas Code of Criminal
    Procedure. 
    Id. Second, we
    determine “whether the record contains some evidence
    that would permit a rational jury to find that the defendant is guilty only of the lesser-
    included offense.” 
    Id. A. Theft
    and assault are lesser included offenses of robbery, as
    charged in the indictment.
    Appellant claims, and the State agrees, that theft and assault are lesser
    included offenses of robbery, as charged in the indictment. We apply the “cognate-
    pleading” approach to determine whether an offense is a lesser included offense of
    the offense charged. Ex parte Castillo, 
    469 S.W.3d 165
    , 169 (Tex. Crim. App.
    2015) (citing Hall v. State, 
    225 S.W.3d 524
    , 535 (Tex. Crim. App. 2007)); see
    3
    The record reflects that the value of the merchandise taken by Appellant from Walmart was within
    the range of a misdemeanor theft, see PENAL § 31.03(e) (West Supp. 2017), and that the assault by Appellant
    upon Alexander would constitute a misdemeanor assault, see 
    id. § 22.01(a)(1),
    (b).
    3
    Knott v. State, 
    513 S.W.3d 779
    , 791 (Tex. App.—El Paso 2017, pet. ref’d). We must
    compare the pleaded elements of the greater offense to the statutory elements of the
    potential lesser-included offense. Ex parte 
    Castillo, 469 S.W.3d at 169
    . We review
    the legal question in the abstract, and our review does not depend on the evidence
    offered at trial. See 
    id. In this
    case, the grand jury returned an indictment that alleged
    that Appellant “did then and there, while in the course of committing theft of
    property and with intent to obtain or maintain control of said property, intentionally,
    knowingly, or recklessly cause bodily injury to Benjamin Alexander by pulling on
    Benjamin Alexander’s arm and swinging his fists at him.”
    When an indictment for robbery alleges the statutory element “in the course
    of committing theft”—as is present in this case—“[t]heft, by whatever method
    committed, is necessarily included in the alleged elements of the greater offense of
    robbery.” Earls v. State, 
    707 S.W.2d 82
    , 84–85 (Tex. Crim. App. 1986); see
    PENAL § 31.03 (defining “theft”). Therefore, theft is a lesser included offense of
    robbery in this case because the indictment alleged the statutory element of “in the
    course of committing theft.” See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West
    2006) (an offense is a lesser included offense if “it is established by proof of the
    same or less than all the facts required to establish the commission of the offense
    charged”).
    For the offense of assault, assault is a lesser included offense of robbery if the
    defendant is charged by indictment with intentionally, knowingly, or recklessly
    causing “bodily injury to another.” Martinez v. State, 
    599 S.W.2d 622
    , 624 (Tex.
    Crim. App. [Panel Op.] 1980) (“[A]n allegation of robbery by causing bodily injury
    would include the lesser offense of assault by causing bodily injury . . . .”); see
    PENAL § 22.01 (defining “assault”). Assault is a lesser included offense of robbery
    in this case because the indictment alleged that Appellant “intentionally, knowingly,
    or recklessly caused bodily injury.” See CRIM. PROC. art. 37.09(1).
    4
    B. Appellant failed to produce evidence that the misdemeanor theft
    and misdemeanor assault were separate events.
    To be entitled to a lesser included instruction for misdemeanor theft and
    assault, “some evidence directly germane” to those lesser included offenses must
    have been presented; “[i]t is not enough that the jury may disbelieve crucial evidence
    pertaining to the greater offense” of robbery. Skinner v. State, 
    956 S.W.2d 532
    , 543
    (Tex. Crim. App. 1997). Appellant must point to evidence that “negates the
    aggravating element of the greater offense” of robbery, or Appellant could show that
    the evidence pertaining to the “aggravating element is so weak that a rational jury
    might interpret in such a way as to give it no probative value.” Robertson v. State,
    
    871 S.W.2d 701
    , 706 (Tex. Crim. App. 1993).
    “Anything more than a scintilla of evidence is sufficient to entitle a defendant
    to a lesser charge.” Bignall v. State, 
    887 S.W.2d 21
    , 23 (Tex. Crim. App. 1994).
    This court does “not consider whether the evidence is credible, controverted, or in
    conflict with other evidence.” Moore v. State, 
    969 S.W.2d 4
    , 8 (Tex. Crim. App.
    1998). Appellant attempts to negate the robbery element of “in the course of
    committing theft” to show he was entitled to lesser included instructions for both
    misdemeanor theft and misdemeanor assault. Appellant suggests that the theft and
    the assault were separate events and that there is more than a scintilla of evidence
    that Appellant was no longer in the “course of committing a theft” when he assaulted
    Alexander.    Appellant asserts that, because he ran to his car with the stolen
    merchandise after his female accomplice was detained, disposed of the stolen
    merchandise, and then came back and committed the assault, Appellant had
    successfully escaped. He argues that the theft was completed and that he was no
    longer “in the course of committing a theft” when he assaulted Alexander. See
    Sweed v. State, 
    351 S.W.3d 63
    , 69 (Tex. Crim. App. 2011) (if State could not prove
    “in the course of committing theft,” then the theft and assault were separate events).
    5
    We note that, under the current robbery statute, the legislature “assigned a
    broad meaning to the term, ‘in the course of committing theft,’ to encompass
    virtually any act occurring immediately before, during, or after a theft.” 
    Knott, 513 S.W.3d at 793
    (citing Sorrells v. State, 
    343 S.W.3d 152
    , 157–58 (Tex. Crim. App.
    2011)). “In the course of committing theft” is defined under the Penal Code as
    “conduct that occurs in an attempt to commit, during the commission, or in
    immediate flight after the attempt or commission of theft.” PENAL § 29.01(1). The
    term “immediate flight” is not defined in the Penal Code, but the term “immediate”
    can be defined as “[o]ccurring without delay; instant,” “[n]ot separated by other
    persons or things,” or “[h]aving a direct impact; without an intervening agency.”
    
    Sweed, 351 S.W.3d at 69
    n.5 (quoting BLACK’S LAW DICTIONARY 751 (7th ed.
    1999)); see Thomas v. State, 
    708 S.W.2d 580
    , 581 (Tex. App.—Eastland 1986, pet.
    ref’d) (providing an alternate definition of “immediate”).
    In this case, the jury could have concluded that Appellant caused bodily injury
    to Alexander in immediate flight after the commission of the theft. See Ulloa v.
    State, 
    570 S.W.2d 954
    , 957–58 (Tex. Crim. App. 1978). Approximately one minute
    transpired from the point that Appellant passed the “last point of sale” with the stolen
    items to when Appellant came back and swung his arms at Alexander. The close
    proximity of the theft and the assault supports a conclusion that the assault occurred
    “immediately” and “without delay” after the theft. See 
    Thomas, 708 S.W.2d at 581
    (concluding appellant was in immediate flight after an attempted theft when “it was
    established that appellant was observed committing theft, was detained for the
    arrival of police, and assaulted a security guard in an effort to escape, all within a
    time frame of 13 to 20 minutes”).
    Moreover, although Appellant returned to his vehicle to place all or some of
    the stolen items there, this is not an intervening circumstance that would break the
    chain of events between the theft and the assault. See Oggletree v State, 
    851 S.W.2d 6
    367, 369–70 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (defendant’s act of
    fleeing from the parking lot did not constitute an intervening circumstance that broke
    the chain of events between the attempted theft and assault). Appellant did not
    successfully escape from Walmart after the theft; rather, he remained in the vicinity
    of the Walmart store and immediately returned and assaulted Alexander. See 
    id. (defendant was
    in immediate flight when he fled after the attempted theft and then
    returned and assaulted the person who was detaining his accomplice). No reasonable
    juror could have concluded that there was a break in the chain of events and that the
    theft and the assault were separate events—unlike the facts in Sweed. See 
    Sweed, 351 S.W.3d at 65
    , 69 (fifteen- to thirty-minute delay between the theft and the assault
    and intervening circumstances, such as entering and exiting an apartment near the
    theft, warranted a lesser included instruction for theft in a robbery appeal).
    Appellant nevertheless argues that he has produced affirmative evidence to
    show that there was a break in the chain of events between the theft and the assault.
    Appellant claims that Alexander testified that Appellant “was no longer in
    immediate flight from the theft when [Appellant] pulled on his arm and swung at
    him with his fist.” We disagree with Appellant’s characterization of Alexander’s
    testimony. Alexander was asked at trial whether Appellant was in immediate flight
    from the theft, and Alexander testified: “I would say he was running because I
    attempted to contact him stating I was asset protection, and I needed to talk to him
    about the items that he had on him.” Alexander was then asked whether Appellant
    had gotten away from the store and placed the items in the car before the alleged
    assault occurred, and Alexander replied: “Yes, or he might have” because “he might
    have still had some of [the items] on him.”
    Several questions later, Alexander explained that, after Appellant ran toward
    his vehicle, Alexander left it up to his assistant to chase after Appellant and that
    Alexander did not expect Appellant to return. We disagree that this testimony
    7
    constitutes affirmative evidence that negates the aggravating element of robbery “in
    the course of committing theft.” Even if Alexander’s testimony was believed by a
    jury, the jury could not conclude that the theft and assault were separate events and
    that Appellant was, therefore, not in the course of committing theft when he
    assaulted Alexander.
    Appellant also points to the testimony of Kevin Webb, an asset protection
    manager at Walmart, to show that Appellant had successfully completed a theft,
    escaped from the scene of the crime, and broke the chain of events in the criminal
    episode. Appellant claims that Webb’s testimony showed that “there was no pursuit
    of [Appellant] after [Appellant] was in the parking lot fleeing toward his car.” We
    note that Webb only testified that Appellant fled the scene. While it is true that no
    Walmart employee pursued Appellant to his vehicle, Appellant chose to remain in
    the vicinity of the store and, as we explained above, he did not escape. The lack of
    pursuit to Appellant’s vehicle does not break the chain of events in the criminal
    episode. See 
    Oggletree, 851 S.W.2d at 368
    –70 (thief successfully evaded store
    employee by fleeing the parking lot but was still considered to be in immediate flight
    when he returned to aid his accomplice).
    The record reflects that the assaultive act occurred immediately after the theft
    with no significant break in the chain of events. The trial court did not err when it
    refused to submit a charge on the lesser included offenses of theft and assault
    because there was no evidence that Appellant, if guilty, was only guilty of the lesser
    included offenses of misdemeanor theft and misdemeanor assault. See Royster v.
    State, 
    622 S.W.2d 442
    , 446–47 (Tex. Crim. App. 1981) (defendant was not entitled
    to a charge on the lesser included offenses of theft and assault in conviction for
    robbery). Accordingly, we overrule Appellant’s sole issue.
    8
    III. This Court’s Ruling
    We affirm the judgment of the trial court.
    MIKE WILLSON
    JUSTICE
    June 28, 2018
    Do not publish. See TEX. R. APP. P. 47.2(b).
    Panel consists of: Willson, J.,
    Bailey, J., and Wright, S.C.J.4
    4
    Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
    sitting by assignment.
    9