PD-0545-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/18/2015 4:59:56 PM June 19, 2015 Accepted 6/19/2015 8:56:49 AM ABEL ACOSTA NO. PD-00545-14 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
EX PARTE THOMAS EDWARD CASTILLO
From The Court of Appeals For The Fourth Court of Appeals District of Texas No. 04-13-00615-CR And The 227th District Court of Bexar County No. 2010-CR-11317
APPELLANT’S MOTION FOR REHEARING
MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1920 San Antonio, Texas 78205 (210) 226-1433 State Bar No. 19184200 mark@markstevenslaw.com
MARIO DEL PRADO 222 Main Plaza San Antonio, Texas 78205 (210) 698-3533 office (210) 698-3701 fax State Bar No. 05653600 mario@delpradolaw.com
Attorneys for Appellant TABLE OF CONTENTS
I. These two offenses are factually the same . . . . . . . . . . . . . . . . . . . . . . . . 1
A. State action has made it impossible to identify the “victims.” . . 2
1. The vaguely worded capital murder indictment is, at best, inconclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. The state refused to clarify its vague indictment . . . . . . . . 5
3. The state opposed consolidation . . . . . . . . . . . . . . . . . . . . . . 7
4. The state chose to focus this capital case on the alleged assault against Sanchez, over Mr. Castillo’s objections that this was irrelevant extraneous misconduct . . . . . . . . . . . . . 8
5. Both prosecutors chose to argue that Ms. Sanchez was the victim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
B. Having strategically avoided every opportunity to make it perfectly clear that its case had only one victim, the state may not now profit from any resulting uncertainty . . . . . . . . . . . . . . . . . . 11
II. If A is a lesser of B, and B is a lesser of C, then A is a lesser of C . . . . 13
III. This Court did not consider Ex parte Nielsen . . . . . . . . . . . . . . . . . . . . 14
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CERTIFICATE OF SERVICE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF COMPLIANCE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
i INDEX OF AUTHORITIES
Cases Pages
Brown v. Ohio, 432 U.S. 166 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Ex parte Castillo, 432 S.W. 3d 467 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,13
Ex parte Chaddock, 369 S.W. 3d 880 (Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Ex parte Goodbread, 967 S.W. 2d 859 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12
Ex parte Nielson , 131 U.S. 176 (1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15,16
Ex parte Pruitt, 233 S.W. 3d 338 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12
Garfias v. State, 424 S.W. 3d 54 (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Harris v. Oklahoma, 433 U.S. 682 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
In re Nielsen, 131 U.S. 176 (1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
King v. State, 594 S.W. 2d 425 (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,6
Littrell v. State, 271 S.W. 3d 273 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Moore v. State, 969 S.W. 2d 4 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ii Pinkerton v. State, 660 S.W. 2d 58 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Silguero v. State, 608 S.W. 2d 619 (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
State v. Meru, 414 S.W. 3d 159 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stephens v. State, 806 S.W. 2d 812 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Terry v. State, 471 S.W.2d 848 (Tex. Crim. App. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Rules:
TEX. R. APP. PROC.79.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TEX. R. APP. PROC. 9.4(i)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TEX. R. EVID. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEX. R. EVID. 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. R. Evid. 403 ..................................................... 8
TEX. R. EVID. 404 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statutes:
TEX. CODE CRIM. PROC. Art. 21.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7
TEX. CODE CRIM. PROC. Art. 21.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Constitutions: U.S. CONST., Amend V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 U.S. CONST., Amend XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iii TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL APPEALS:
Thomas Castillo moves that rehearing be granted and, as required by TEX. R.
APP. PROC. 79.1, he briefly and distinctly states the grounds and arguments relied on
to support this motion.
I. These two offenses are factually the same
This Court correctly held that Thomas Castillo may not be prosecuted for
burglary, “because the burglary allegation is legally and factually the same as the
capital-murder charge for which he was previously acquitted.”1 The Court also
correctly held that the capital murder alleged in the one indictment is “legally the
same” as the aggravated assault alleged in the other.2 The Court erred, however,
when it held that these two offenses are not factually the same because they “allege
two different units of prosecution,” and that Mr. Castillo was not in jeopardy of
being convicted of aggravated assault in the capital murder trial.3
1 Ex parte Castillo, 2015 WL 3486960 *4 (Tex. Crim. App. 2015). 2 Id(emphasis supplied). 3 Id. at *5(emphasis supplied).
1 A. State action has made it impossible to identify the “victims.”
Central to this Court’s holding that the capital murder and the aggravated
assault offenses were not factually the same was its conclusion that the victims were
necessarily different:
When the victims alleged in the capital-murder and aggravated- assault charges are compared, we conclude that they allege two different units of prosecution: Nava and Sanchez.
Furthermore, Appellant was not in jeopardy of being convicted for committing aggravated assault against Sanchez during his capital-murder trial because the State did not have to prove that Appellant committed aggravated assault against Sanchez to establish capital murder. There was no set of facts that the jury could have believed that required it to return a guilty verdict based on a belief that Appellant committed aggravated assault against Sanchez. That is, if the jury convicted Appellant of capital murder, it must have also believed that Appellant committed aggravated assault against Nava.4
Contrary to what this Court held, it is impossible to know if the jury
considered Mr. Nava or Ms. Sanchez when it was deciding whether Mr. Castillo
was in fact guilty of aggravated assault against that person, then of burglarizing the
Nava home, and then, finally, of capital murder of Mr. Nava. This Court erred when
it held that “[t]here was no set of facts that the jury could have believed that
required it to return a guilty verdict based on a belief that Appellant committed
aggravated assault against Sanchez.” Rather, from the totality of circumstances
4 Id(emphasis supplied).
2 surrounding the trial, a reasonable jury might well have believed that Mr. Castillo
committed aggravated assault against his wife, and might have then used this
finding to convict him of capital murder. Because of this, the two offenses – capital
murder and aggravated assault – were legally, factually, and constitutionally the
same, and a successive trial is barred by the Double Jeopardy Clause of the Fifth
and Fourteenth Amendments to the United States Constitution.
1. The vaguely worded capital murder indictment is, at best, inconclusive.
The aggravated assault count alleges a single offense against one person —
Carol Sanchez. As alleged in that count, Sanchez is clearly the only victim; there is
no possibility of confusion, given the wording of the indictment, and the crime
alleged — aggravated assault.
The capital murder indictment, though, is different. Mr. Nava is certainly
identified as one victim, namely, the person alleged to have been murdered, and the
one who owned the habitation that was burglarized. It is not clear from the
indictment that he was the only victim, however. Because it is a compound crime, a
single capital murder can have multiple victims. King v. State, proves this. King
was charged with capital murder in the course of kidnapping, aggravated rape, and
robbery, but the indictment named only the victim of the murder. The trial court
erred when it denied King’s motion to quash that indictment because it did not also
3 allege the “name of the aggravated rape victim” since that was both a fact critical to
King’s preparation and “was required to precisely distinguish the conduct alleged
from other conduct by the accused, and thereby insure a bar to a subsequent
prosecution for the same offense.”5
Mr. Castillo’s indictment suffered from the same lack of precision, and, for
the same reason, it also failed its constitutional and statutory duty to insure against
subsequent prosecution for the same offense. The court’s charge clearly
demonstrates the problem: It authorized Mr. Castillo’s conviction for capital
murder upon a finding that he had entered a habitation and committed “aggravated
assault.” But aggravated assault was the only predicate offense to burglary that
was submitted in the court’s charge, and it was defined as using or exhibiting a
deadly weapon to “cause[ ] bodily injury to another.”6 Was “another,” Mr. Nava, or
Ms. Sanchez? The charge, of course, was based on the indictment, and because the
indictment failed to identify the victim of the alleged assault, so did the charge,
hence the indefinite, “another.” That is, because of the vagueness of the state’s
indictment, it is impossible to know who the jury might have considered as the
5 594 S.W.2d 425, 427 (Tex. Crim. App. 1980)(emphasis supplied). 6 A certified copy of the court’s charge to the jury was introduced at the writ hearing as Defendant’s Exhibit H. The definition of “aggravated assault” is on page 2 of that exhibit.
4 putative assault victim when deliberating Mr. Castillo’s guilt of capital murder.
Contrary to what this Court found, then, it is not true that “if the jury convicted
Appellant of capital murder, it must have also believed that Appellant committed
aggravated assault against Nava.”7 According to the plain wording of the charge,
and the evidence at trial, the jury could also have convicted if it believed, among
other things, that Mr. Castillo committed aggravated assault against Sanchez. That
is why the two offenses are factually the same and why a successive prosecution for
aggravated assault now, after the acquittal for capital murder, is barred by the
Double Jeopardy Clause.
2. The state refused to clarify its vague indictment.
Defendant’s Motion To Set Aside The Indictment Number One asserted,
among other things, that the capital murder indictment should be set aside because it
failed to allege “the particular type of burglary, the specific acts defendant allegedly
committed, or the constituent elements of burglary.”8 At the hearing, the defense
argued that the indictment should have to “specify the particular type of burglary”
charged.9 The court asked the prosecutor if she objected, she did, and the motion
7 Id(emphasis supplied). 8 [Defendant’s Exibit C] 9 [RR.I–5]
5 was overruled.10
Our motion cited article 21.04 of the Texas Code of Criminal Procedure
which mandates that indictments be certain enough “as will enable the accused to
plead the judgment that may be given upon it in bar of any prosecution for the same
offense.11 Although it is generally true that a capital indictment need not allege the
constituent elements of the predicate offense, King and similar cases require
precision when the indictment “is susceptible of an interpretation that the victim
was a person other than the named deceased.”12 Certainly the indictment in our
case, where the state offered proof that two different people suffered assaultive
conduct, was susceptible of the same interpretations as in King.
In State v. Meru, the question was whether criminal trespass was a lesser
included offense of the burglary the defendant had been indicted for. This Court
10 [RR.I–14] 11 TEX. CODE CRIM. PROC. art. 21.04; see also Terry v. State, 471 S.W.2d 848, 851 (Tex. Crim. App. 1971); see also TEX. CODE CRIM. PROC. art. 21.11 (indictment must be sufficient to “enable the court, on conviction, to pronounce the proper judgment”). 12 Pinkerton v. State, 660 S.W.2d 58, 63 (Tex. Crim. App. 1983)(no error where indictment for capital murder during the course of burglary was not “susceptible of an interpretation that the intended victim of the intended rape was anyone other than the deceased”); see also Silguero v. State, 608 S.W.2d 619, 620 (Tex. Crim. App. 1980).
6 held it was not because the elements of the lesser could not reasonably be deduced
from the greater indictment.13 That said, the Court made it clear the defendant
would not be without remedy:
However, a defendant who committed a full-body entry and wants the opportunity for an instruction on criminal trespass can file a motion to quash the indictment for lack of particularity. This would force the State to re-file the indictment, specifying the type of entry it alleges the defendant committed and allow either party to later request an instruction on criminal trespass.14
That, of course, is precisely what Mr. Castillo attempted to do with his motion
to set aside. In our case, though, because the state objected, and the trial court
acceded, no one was “force[d] . . . to refile the indictment” specifying the name of
the complainant. Having resisted the opportunity to clarify more precisely what kind
of burglary and assault it intended to prove, the state in this Court invoked its vague
pleading as justification for trying Mr. Castillo again. But the state should not be
rewarded for imprecision, especially in light of the express mandate of article 21.04,
and the cases that interpret it.
3. The state opposed consolidation.
Before trial began, Mr. Castillo moved to consolidate trial on the two
13 414 S.W.3d 159, 164 (Tex. Crim. App. 2013). 14 Id. at 164 n. 3.
7 indictments, contending that consolidation made "perfect sense;" that all
transactions allegedly occurred at the same time; that they were "inextricably
intertwined;" that much if not all the evidence would be duplicative; that
consolidation would promote judicial economy; and that it was required by Due
Process and Due Course of Law. The state opposed consolidation and the court
refused to order it. Counsel’s warning that a subsequent trial might pose a jeopardy
problem failed to change the ruling.15
4. The state chose to focus this capital case on the alleged assault against Sanchez, over Mr. Castillo’s objections that this was irrelevant extraneous misconduct.
Before trial began, Mr. Castillo objected extensively to proof regarding the
alleged assault on Ms. Sanchez as extraneous misconduct, inadmissible under Texas
Rules of Evidence 401, 402, 403, and 404(b).16 The state insisted on its right to
present that evidence because the different allegations were "the same criminal
transaction."17
Ms. Sanchez was the state’s first and principal witness in the capital murder
15 [Defendant's Exhibit D, II–18-20] 16 [Defendant’s Exhibit E][Defendant's Objections to Evidence Pursuant To Rule 103(a)(1)]. 17 [Defendant's Exhibit D, III--7-8]
8 case, and she testified that Mr. Castillo punched her several times, stabbed her 11
times with multiple knives, fractured her arm, bit her finger and blackened her eye,
and that she spent a week in the hospital where she received a colonoscopy.18 The
state also called a deputy who arrived on the scene and testified about the blood from
Ms. Sanchez’s injuries, and a paramedic who testified to the number and type of stab
wounds she had, and the treatment he provided her.19 Twenty photographs of her
injuries, taken some four days after the incident, were introduced into evidence.20
The state offered, and the court admitted, seventy-six pages of medical records from
Brooke Army Medical Center concerning Ms. Sanchez’s treatment.21
Plainly the state strategically chose to make the capital prosecution as much –
if not more – about Sanchez than Nava. In light of this evidentiary emphasis, it is
reasonable that the jury that was tasked with determining capital murder likely did
consider whether Carol Sanchez was the victim of aggravated assault. This Court
18 [Defendant's Exhibit D, III–89-95] 19 [Defendant's Exhibit D, IV–30-31] 20 [Defendant's Exhibit D, IV–90] Those photographs were introduced as state’s exhibits 97 - 116, and can be found in Volume Seven of Defendant’s Exhibit D. 21 [Defendant’s Exhibit D, V–73]; State’s Exhibit 236.
9 erred when it found otherwise.22
5. Both prosecutors chose to argue that Ms. Sanchez was the victim.
As noted, aggravated assault was the only felony identified in the court’s
charge as a predicate to the underlying burglary. The jury heard evidence that Mr.
Nava was murdered, and that Ms. Sanchez was assaulted. So who did the jury most
likely look to as the alleged assault victim? Both prosecutors argued their case in
such a way as to suggest that their assault victim was Carol Sanchez.
Prosecutor Spiegel made this point in her summation: "If you enter
somebody's house with the intent to attack them with a deadly weapon, to harm
someone inside the house, that's still a burglary even though it doesn't involve theft,
so I hope that's clear to everybody."23
Prosecutor Molina was more explicit: "well, you can't kill the new boyfriend
and you can't assault your estranged wife with a knife. You just can't do that. The
22 The state’s argument that an appellate court may not consider trial evidence when determining a jeopardy challenge is clearly erroneous. See e.g., Garfias v. State, 424 S.W. 3d 54-56 (Tex. Crim. App. 2014)(this Court expressly relied on facts to decide jeopardy issue); Ex parte Pruitt, 233 S.W. 3d 338, 339-45 (Tex. Crim. App. 2007)(same); Ex parte Goodbread, 967 S.W. 2d 859, 860-61 (Tex. Crim. App. 1998)(same). Indeed, as Judge Cochran observed in her concurring opinion in Garfias: “. Here, it all depends on the trial record which, according to the State's theory at trial and on appeal, shows two separate and distinct incidents . . . .”)(emphasis supplied). 23 [Defendant's Exhibit D, VI--25][emphasis supplied]
10 law says you can't. And there is no question. There was no question. There is no
question for Carol about what happened that night, and there is no question for Roy
about what happened last night -- that night, because what happened was capital
murder, and it is for the worst of the worst, because that's what happened and that's
what he did, and that is why we believe that there is no question and that you will
find Thomas Castillo guilty of capital murder."24
B. Having strategically avoided every opportunity to make it perfectly clear that its case had only one victim, the state may not now profit from any resulting uncertainty.
As shown, when the entire record is examined, it is more likely that, when the
jury was deciding whether Mr. Castillo committed the capital murder of Mr. Nava, it
necessarily considered whether he had committed the aggravated assault of Ms.
Sanchez. Therefore, contrary to what this Court held, these two offenses are both
legally and factually the same, and double jeopardy bars prosecution of the latter
after an acquittal of the former.
But even if it could be said that there is now some uncertainty about which of
the two persons the jury more likely viewed as the victim of aggravated assault, that
uncertainty must be laid entirely at the feet of the state. The state chose not to
specify the victims in the indictment, then refused an invitation to clarify the
24 [Defendant's Exhibit D, VI--60-61][emphasis supplied]
11 indictment when confronted with a motion to set aside. The state declined an offer
to consolidate the two indictments, which would have avoided the very double
jeopardy challenge to successive prosecutions that we now assert. When the defense
objected that evidence about Sanchez was extraneous, the prosecutors disagreed,
then responded by focusing more on her assault than the murder of Mr. Nava. And,
after the jury had been instructed it could find the underlying burglary if it believed
“another” unnamed person had been assaulted, the prosecutors argued in such a way
as to suggest that this person could be Ms. Sanchez. Having stubbornly insisted on
trying its case in a way that obscured the identity of its victim, undoubtedly for some
perceived strategic advantage, the state should not now be permitted to claim that
Nava was the only victim here, thereby avoiding the preclusive effect of double
jeopardy.25 Rehearing should be granted because, contrary to this Court’s holding,
aggravated assault and capital murder are factually the same.
25 Cf. Ex parte Goodbread, 967 S.W. 2d 859, 860 (Tex. Crim. App. 1998)(“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”)(emphasis supplied)(quoted in Ex parte Pruitt, 233 S.W.3d 338, 347 (Tex. Crim. App. 2007)).
12 II. If A is a lesser of B, and B is a lesser of C, then A is a lesser of C
This Court correctly held that the burglary charge is a lesser included offense
of the capital murder of which Mr. Castillo was acquitted.26 The aggravated assault
against Ms. Sanchez that is alleged in the first count of the indictment is a lesser
included offense of the burglary that is alleged in the second count, since that very
aggravated assault is expressly alleged as a predicate of the burglary.27 Since the
burglary alleged in the second count is a lesser included offense of the capital
murder, and the aggravated assault is a lesser included offense of the burglary, the
aggravated assault is also a lesser included offense of the capital murder.28 These
26 Ex parte Castillo, 2015 WL 3486960 at *3. 27 Ex parte Chaddock, 369 S.W.3d 880, 886 (Tex. Crim. App. 2012)(prior prosecution for a greater offense would prevent the state from later prosecuting a lesser-included predicate offense); see also Harris v. Oklahoma, 433 U.S. 682, 682 (1977)("When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one."). 28 Cf. Littrell v. State, 271 S.W.3d 273, 277 n.18 (Tex. Crim. App. 2008)(because attempted aggravated robbery is a lesser included offense of aggravated robbery, and aggravated robbery is a lesser included offense of felony murder, attempted aggravated robbery is a lesser included offense of felony murder); Moore v. State, 969 S.W. 2d 4, 9 (Tex. Crim. App. 1998)(where voluntary manslaughter is a lesser included offense of murder, and murder is a lesser of capital murder, then voluntary manslaughter is a lesser included offense
13 two offenses are constitutionally the same, then, for double jeopardy purposes.
Rehearing should be granted because this Court erred in holding otherwise.29
III. This Court did not consider Ex parte Nielsen
In Brown v . Ohio, after noting that “[t]he Blockburger test is not the only
standard for determining whether successive prosecutions impermissibly involve the
same offense,” the Supreme Court referred to the test formulated in Ex parte
Nielsen.30 There, two indictments were presented against the defendant on the same
day; one charged that he cohabitated with two different women, and the other that he
had committed adultery with one of these same women when he was married to
another.31 He pled guilty to the first indictment (cohabitation), then asserted that the
second indictment (adultery) was barred by double jeopardy because the two charged
of capital murder). 29 Brown v. Ohio, 432 U.S. at 168 (“The greater offense is therefore by definition the ‘same' for purposes of double jeopardy as any lesser offense included in it."). 30 Brown v. Ohio, 432 U.S. at 166 n. 6 (1977); see also Stephens v. State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990)(“the Court also reaffirmed the ‘same incidents’ test contained in In re Nielsen”). 31 131 U.S. 176 (1889).
14 offenses were in fact one and the same.32 “Cohabitation” as charged in the first
indictment meant living together as husband and wife. That, said the Court, is also
an “integral part” of adultery, which was charged in the second indictment.
We are satisfied that a conviction was a good bar, and that the court was wrong in overruling it. We think so because the material part of the adultery charged was comprised within the unlawful cohabitation of which the petitioner was already convicted, and for which he had suffered punishment.33
Mr. Castillo also prevails under the Nielsen test. As in Nielsen, the aggravated
assault charged in the second indictment is an “integral part” of the capital murder
charged in the first. The prosecutors certainly said so before the capital trial began
when insisting on their right to prove in that trial the assault against Carol Sanchez.
It was “part of the State's case. . . . the same criminal transaction,” they argued. It
happened on the “same date . . . [and involved the] same criminal transaction, same
facts.” According to the prosecutors, everything allegedly done to her by Mr.
Castillo “was done to her as part of the capital murder.34 Later at trial, they spent a
considerable portion of their case proving this assault and the injuries Ms. Sanchez
32 Id. at 177. 33 Id. at 187. 34 [Defendant's Exhibit D, III–7-8][emphasis supplied]
15 suffered — through the lengthy and graphic testimony of Ms. Sanchez herself,35
through other testimony,36 and through the introduction of some twenty photographs
and 76 pages of medical records.37 Just as in Nielsen, “the material part of the
[aggravated assault] charged was comprised within the [capital murder] of which”
Mr. Castillo has already been tried. As in Nielsen, successive trials for the same
offenses are barred by double jeopardy. This motion for rehearing should be granted
because the Court did not consider Mr. Castillo’s argument under Ex parte Nielsen,
even though that case also establishes that an effort by the state to prosecute him for
aggravated assault following his acquittal for capital murder is jeopardy-barred.
PRAYER
Thomas Castillo prays that this Court grant his motion for rehearing and hold
that the Double Jeopardy Clause bars his prosecution for the alleged aggravated
assault against Carol Sanchez. The judgment of the Court of Appeals that reversed
the order of the trial court denying his pretrial application for writ of habeas corpus
should therefore be affirmed and this cause should be remanded to the trial court
35 [Defendant's Exhibit D, III-89-95] 36 [Defendant's Exhibit D, IV–30-31] 37 See State’s Exhibits 97 - 116 & 236 in Volume Seven of Defendant’s Exhibit D.
16 with an order to dismiss the indictment in 2010-CR-11317 with prejudice.
Respectfully submitted:
/s/ MARK STEVENS 310 S. St. Mary's Tower Life Building, Suite 1920 San Antonio, Texas 78205 (512) 226-1433 State Bar No. 19184200
MARIO DEL PRADO 222 Main Plaza San Antonio, Texas 78205 (210) 698-3533 office (210) 698-3701 fax State Bar No. 05653600
Attorneys for Appellant
CERTIFICATE OF SERVICE
I certify that a copy of this Motion For Rehearing was delivered to the Bexar
County District Attorney's Office; 101 W. Nueva; San Antonio, Texas 78205, on this
the 18th day of June, 2015.
/s/ MARK STEVENS
17 CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. PROC. 9.4(i)(2)(B), I certify that this Motion For
Rehearing contains 3,786 words according to the word count of the computer
program used to prepare the brief.