NUMBER 13-24-00023-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUIS GILBERTO CASTILLO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 139TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Benavides
A jury convicted appellant Luis Gilberto Castillo of committing four offenses against
the same complainant: one count of continuous sexual abuse of a young child, a first-
degree felony; one count of indecency with a child by sexual contact, a second-degree
felony; and two counts of aggravated sexual assault of a child, first-degree felonies. See TEX. PENAL CODE ANN. §§ 21.02(b)(2)(A), 21.11(a)(1), 22.021(a)(1)(A)(i). The trial court
sentenced Castillo to concurrent terms of imprisonment of forty-two, twenty, sixty, and
sixty years, respectively. On appeal, Castillo contends that only his continuous sexual
abuse conviction should stand because the other three convictions constitute double-
jeopardy violations. The State concurs and asks that we retain the continuous sexual
abuse conviction even though Castillo received longer sentences for his aggravated
sexual assault convictions. We affirm the convictions for continuous sexual abuse and
indecency by sexual contact, and we vacate the convictions for aggravated sexual
assault.
I. BACKGROUND
By a four-count indictment, the following allegations were made against Castillo:
(Count I) from February 4, 2020, through June 20, 2021, during a period that was thirty
or more days in duration, Castillo committed two or more acts of sexual abuse against
Ashley,1 a child younger than fourteen years of age, by committing the predicate acts of
aggravated sexual assault of a child and indecency with a child by sexual contact;
(Count II) on February 23, 2020, Castillo committed the offense of indecency with a child
by sexual contact by touching Ashley’s breast; (Count III) on June 23, 2020, Castillo
committed the offense of aggravated sexual assault of a child by penetrating Ashley’s
sexual organ with his penis; and (Count IV) on June 24, 2020, Castillo committed the
1 To protect the identity of the complainant, we refer to her by the pseudonym given to her in the
indictment. See TEX. CODE CRIM. PROC. ANN. art. 58.102(a).
2 offense of aggravated sexual assault of a child by penetrating Ashley’s anus with his
penis.
Consistent with the allegations in the indictment, Ashley testified at trial that over
a period of “months,” Castillo penetrated her sexual organ with his penis “[t]oo many times
to count.” She was twelve years old at the time. She said these repeated incidents
occurred both at Castillo’s house and in his car. She further testified that they also had
anal intercourse “a few times.” Finally, Ashley testified that Castillo also touched her
breasts during this period. She was asked whether the breast touching occurred
separately from the other sexual acts, and she responded, “No. It was during [the] sexual
activity.”
All four counts were submitted to the jury as separate offenses without objection.
The jury returned a guilty verdict on each count. Castillo elected for the trial court to
assess his punishment. The trial court entered a separate judgment of conviction on each
count and sentenced Castillo as described above. This appeal ensued.
II. DOUBLE JEOPARDY
By his sole issue, Castillo argues that his separate convictions for aggravated
sexual assault of a child constitute double-jeopardy violations because these offenses
were acts of sexual abuse committed against the same complainant during the period of
continuous abuse. He also contends that his conviction for indecency with a child by
sexual contact violated his double-jeopardy rights, but for a different reason. According
to Castillo, because Ashley testified that the breast touching occurred “during [the] sexual
3 activity,” the breast touching should not be considered a separate, punishable offense.
Castillo suggests instead that the breast touching was part of “the same continuous
action” that culminated in aggravated sexual assault.
A. Applicable Law
The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the
states through the Fourteenth Amendment, protects a person from multiple punishments
for the same offense. U.S. CONST. amends. V, XIV; Garfias v. State, 424 S.W.3d 54, 58
(Tex. Crim. App. 2014). A double-jeopardy violation may be raised for the first time on
appeal if two conditions are met: (1) the violation is apparent from the face of the record,
and (2) the enforcement of the usual rules of procedural default would serve no legitimate
state interest. Ex parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013). “In the
multiple-punishments context, two offenses may be the same if one offense stands in
relation to the other as a lesser-included offense, or if the two offenses are defined under
distinct statutory provisions but the Legislature has made it clear that only one punishment
is intended.” Littrell v. State, 271 S.W.3d 273, 275–76 (Tex. Crim. App. 2008).
“A double-jeopardy violation [also] occurs if one is convicted or punished for two
offenses that are the same both in law and in fact.” Aekins v. State, 447 S.W.3d 270, 279
(Tex. Crim. App. 2014). “Where two crimes are such that the one cannot be committed
without necessarily committing the other, then they stand in the relationship of greater
and lesser offenses, and the defendant cannot be convicted or punished for both.” Id. at
280. For instance, in the context of sexual assault, “[p]enetration without contact is
4 impossible.” Id. at 279. Therefore, “a defendant may not be convicted for a completed
sexual assault by penetration and also for conduct (such as exposure or contact) that is
demonstrably and inextricably part of that single sexual assault.” Id. at 281.
“To obtain a conviction for continuous sexual abuse of a child, the State must show
that the defendant committed at least two acts of sexual abuse against a child younger
than 14 years of age during a period of at least 30 days’ duration.” Ramos v. State, 636
S.W.3d 646, 651 (Tex. Crim. App. 2021) (citing TEX. PENAL CODE ANN. § 21.02(b)).
Aggravated sexual assault of a child is one of the predicate offenses listed as an “act of
sexual abuse.” TEX. PENAL CODE ANN. §§ 21.02(c)(4). Indecency with a child by sexual
contact is also a predicated offense; however, breast touching is expressly excluded as
a qualifying act. Id. § 21.02(c)(2).
Another feature of the continuous abuse statute is that “the Legislature clearly
intended to disallow dual convictions for the offense of continuous sexual abuse and for
offenses enumerated as ‘acts of sexual abuse’ when [both convictions are] based on
conduct against the same child during the same period of time.” Price v. State, 434
S.W.3d 601, 606 (Tex. Crim. App. 2014) (citing TEX. PENAL CODE ANN. § 21.02(e)). Stated
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NUMBER 13-24-00023-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LUIS GILBERTO CASTILLO, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 139TH DISTRICT COURT OF HIDALGO COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Benavides
A jury convicted appellant Luis Gilberto Castillo of committing four offenses against
the same complainant: one count of continuous sexual abuse of a young child, a first-
degree felony; one count of indecency with a child by sexual contact, a second-degree
felony; and two counts of aggravated sexual assault of a child, first-degree felonies. See TEX. PENAL CODE ANN. §§ 21.02(b)(2)(A), 21.11(a)(1), 22.021(a)(1)(A)(i). The trial court
sentenced Castillo to concurrent terms of imprisonment of forty-two, twenty, sixty, and
sixty years, respectively. On appeal, Castillo contends that only his continuous sexual
abuse conviction should stand because the other three convictions constitute double-
jeopardy violations. The State concurs and asks that we retain the continuous sexual
abuse conviction even though Castillo received longer sentences for his aggravated
sexual assault convictions. We affirm the convictions for continuous sexual abuse and
indecency by sexual contact, and we vacate the convictions for aggravated sexual
assault.
I. BACKGROUND
By a four-count indictment, the following allegations were made against Castillo:
(Count I) from February 4, 2020, through June 20, 2021, during a period that was thirty
or more days in duration, Castillo committed two or more acts of sexual abuse against
Ashley,1 a child younger than fourteen years of age, by committing the predicate acts of
aggravated sexual assault of a child and indecency with a child by sexual contact;
(Count II) on February 23, 2020, Castillo committed the offense of indecency with a child
by sexual contact by touching Ashley’s breast; (Count III) on June 23, 2020, Castillo
committed the offense of aggravated sexual assault of a child by penetrating Ashley’s
sexual organ with his penis; and (Count IV) on June 24, 2020, Castillo committed the
1 To protect the identity of the complainant, we refer to her by the pseudonym given to her in the
indictment. See TEX. CODE CRIM. PROC. ANN. art. 58.102(a).
2 offense of aggravated sexual assault of a child by penetrating Ashley’s anus with his
penis.
Consistent with the allegations in the indictment, Ashley testified at trial that over
a period of “months,” Castillo penetrated her sexual organ with his penis “[t]oo many times
to count.” She was twelve years old at the time. She said these repeated incidents
occurred both at Castillo’s house and in his car. She further testified that they also had
anal intercourse “a few times.” Finally, Ashley testified that Castillo also touched her
breasts during this period. She was asked whether the breast touching occurred
separately from the other sexual acts, and she responded, “No. It was during [the] sexual
activity.”
All four counts were submitted to the jury as separate offenses without objection.
The jury returned a guilty verdict on each count. Castillo elected for the trial court to
assess his punishment. The trial court entered a separate judgment of conviction on each
count and sentenced Castillo as described above. This appeal ensued.
II. DOUBLE JEOPARDY
By his sole issue, Castillo argues that his separate convictions for aggravated
sexual assault of a child constitute double-jeopardy violations because these offenses
were acts of sexual abuse committed against the same complainant during the period of
continuous abuse. He also contends that his conviction for indecency with a child by
sexual contact violated his double-jeopardy rights, but for a different reason. According
to Castillo, because Ashley testified that the breast touching occurred “during [the] sexual
3 activity,” the breast touching should not be considered a separate, punishable offense.
Castillo suggests instead that the breast touching was part of “the same continuous
action” that culminated in aggravated sexual assault.
A. Applicable Law
The Double Jeopardy Clause of the Fifth Amendment, which is applicable to the
states through the Fourteenth Amendment, protects a person from multiple punishments
for the same offense. U.S. CONST. amends. V, XIV; Garfias v. State, 424 S.W.3d 54, 58
(Tex. Crim. App. 2014). A double-jeopardy violation may be raised for the first time on
appeal if two conditions are met: (1) the violation is apparent from the face of the record,
and (2) the enforcement of the usual rules of procedural default would serve no legitimate
state interest. Ex parte Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013). “In the
multiple-punishments context, two offenses may be the same if one offense stands in
relation to the other as a lesser-included offense, or if the two offenses are defined under
distinct statutory provisions but the Legislature has made it clear that only one punishment
is intended.” Littrell v. State, 271 S.W.3d 273, 275–76 (Tex. Crim. App. 2008).
“A double-jeopardy violation [also] occurs if one is convicted or punished for two
offenses that are the same both in law and in fact.” Aekins v. State, 447 S.W.3d 270, 279
(Tex. Crim. App. 2014). “Where two crimes are such that the one cannot be committed
without necessarily committing the other, then they stand in the relationship of greater
and lesser offenses, and the defendant cannot be convicted or punished for both.” Id. at
280. For instance, in the context of sexual assault, “[p]enetration without contact is
4 impossible.” Id. at 279. Therefore, “a defendant may not be convicted for a completed
sexual assault by penetration and also for conduct (such as exposure or contact) that is
demonstrably and inextricably part of that single sexual assault.” Id. at 281.
“To obtain a conviction for continuous sexual abuse of a child, the State must show
that the defendant committed at least two acts of sexual abuse against a child younger
than 14 years of age during a period of at least 30 days’ duration.” Ramos v. State, 636
S.W.3d 646, 651 (Tex. Crim. App. 2021) (citing TEX. PENAL CODE ANN. § 21.02(b)).
Aggravated sexual assault of a child is one of the predicate offenses listed as an “act of
sexual abuse.” TEX. PENAL CODE ANN. §§ 21.02(c)(4). Indecency with a child by sexual
contact is also a predicated offense; however, breast touching is expressly excluded as
a qualifying act. Id. § 21.02(c)(2).
Another feature of the continuous abuse statute is that “the Legislature clearly
intended to disallow dual convictions for the offense of continuous sexual abuse and for
offenses enumerated as ‘acts of sexual abuse’ when [both convictions are] based on
conduct against the same child during the same period of time.” Price v. State, 434
S.W.3d 601, 606 (Tex. Crim. App. 2014) (citing TEX. PENAL CODE ANN. § 21.02(e)). Stated
differently, “the Legislature did not intend to permit dual convictions for continuous sexual
abuse and for an enumerated act of sexual abuse unless the latter occurred during a
different period of time.” Id.; see Allen v. State, 620 S.W.3d 915, 922 & n.9 (Tex. Crim.
App. 2021) (finding that the evidence did not support dual convictions under § 21.02(e)
because the predicate offense occurred during the period of continuous abuse but noting
5 that “[i]t may be a different case if the evidence shows a clear period of continuing abuse,
and, after several years during which no abuse occurred, an isolated incident of abuse”
occurs).
B. Analysis
As the State acknowledges, Castillo’s convictions for aggravated sexual assault
were based on acts of sexual abuse that he committed against Ashley during the period
of continuous abuse. See TEX. PENAL CODE ANN. §§ 21.02(c)(4). Accordingly, we agree
with the parties that the Legislature did not intend for Castillo to be convicted and
punished separately for all three offenses. See id. § 21.02(e); Price, 434 S.W.3d at 606.
Given the State’s assent to correcting this error, we also conclude that there is no
legitimate State interest to be served by enforcing the usual rules of procedural default.
See Ex parte Denton, 399 S.W.3d at 544.
We hold, however, that Castillo’s conviction for indecency with a child by sexual
contact is a separate offense for which there was no double-jeopardy violation. Breast
touching is expressly excluded from the list of predicate acts that constitute continuous
abuse; therefore, the above analysis does not apply. See TEX. PENAL CODE ANN.
§ 21.02(c)(2), (e); Price, 434 S.W.3d at 606.
It is undisputed that Ashley’s testimony was sufficient to establish the offense. See
TEX. CODE CRIM. PROC. ANN. art. 38.07(a). Based on her limited description, though, it is
unclear whether the breast touching occurred before, during, or after intercourse. It may
have been all of the above. In any event, Castillo’s reliance on cases like Patterson v.
6 State, 152 S.W.3d 88 (Tex. Crim. App. 2004) and Maldonado v. State, 461 S.W.3d 144
(Tex. Crim. App. 2015) is misplaced.
As the Court of Criminal Appeals explained in Maldonado, “[a]n offense may be
factually subsumed when there is a single act that cannot physically occur in the absence
of another act.” 461 S.W.3d at 149. Unlike penile contact and penetration, breast touching
is not “demonstrably and inextricably part” of vaginal or anal intercourse. See Aekins, 447
S.W.3d at 281. To be sure, some forms of indecency with a child by sexual contact can
be a lesser-included offense of aggravated sexual assault by penetration. See Martinez
v. State, 524 S.W.3d 344, 348 (Tex. App.—San Antonio 2017, pet. ref’d) (touching the
sexual organ with the hand and digitally penetrating the sexual organ). But there is no
general prohibition on multiple convictions when a defendant commits separate and
distinct statutory offenses in one criminal episode. See Loving v. State, 401 S.W.3d 642,
649 (Tex. Crim. App. 2013) (affirming separate convictions for indecency with a child by
exposure and contact “because the commission of each prohibited act determines how
many convictions may be had for a particular course of conduct”); Vick v. State, 991
S.W.2d 830, 833 (Tex. Crim. App. 1999) (“Our determination that the two indictments
alleged violations of separate and distinct statutory aggravated sexual assault offenses
and that those alleged offenses involved separate and distinct acts ends the inquiry for
double jeopardy purposes.”); Banks v. State, 494 S.W.3d 883, 890 (Tex. App.—Houston
[14th Dist.] 2016, pet. ref’d) (explaining that “a person who commits more than one sexual
act against the same victim may be convicted and punished for each separate act, even
7 if these acts were committed ‘in close temporal proximity’” (quoting Loving, 401 S.W.3d
at 650 (Cochran, J., concurring))). And Castillo has not pointed us to any case holding
that breast touching is a lesser-included offense of aggravated sexual assault by penile
penetration of the sexual organ or anus, and we have found none.
We sustain Castillo’s issue in part and deny it in part.
C. Remedy
When a multiple-punishment violation occurs, “the remedy is to affirm the
conviction for the most serious offense and vacate the other convictions.” Bigon v. State,
252 S.W.3d 360, 372 (Tex. Crim. App. 2008). Generally, the most serious offense is “the
offense in which the greatest sentence was assessed.” Id. at 373. Both parties have asked
us to retain the conviction for continuous sexual abuse even though the sentences for
aggravated sexual assault are ostensibly longer. As the State correctly points out, if we
retain one of Castillo’s convictions for aggravated sexual assault, he will be parole eligible
because there was no aggravated finding that enhanced his minimum punishment. See
TEX. PENAL CODE ANN. § 22.021(f) (listing aggravating findings that enhance the minimum
punishment to twenty-five years’ imprisonment); TEX. GOV’T CODE ANN. § 508.145(a)(3)
(providing that a conviction under § 22.02 is not parole eligible “if the offense is punishable
under Subsection (f) of that section”). On the other hand, if we retain Castillo’s conviction
for continuous sexual abuse, he will be required to serve every day of his forty-two-year
sentence. See TEX. GOV’T CODE ANN. § 508.145(a)(2). We therefore agree that “the
greatest sentence” in this case was the one assessed for continuous sexual abuse. See
8 Bigon, 252 S.W.3d at 373.
III. CONCLUSION
We affirm Castillo’s convictions for continuous sexual abuse of a child (Count I)
and indecency with a child by sexual contact (Count II). We vacate Castillo’s convictions
for aggravated sexual assault of a child (Counts III & IV).
GINA M. BENAVIDES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 29th day of August, 2024.