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

M E M O R A N D U M O P I N I O N

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.

 

1See TEX. PENAL CODE ANN. § 29.02 (West 2011).
2

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.

 

2Alexander 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. 
3

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 lesserincluded 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 “cognatepleading” 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 

 

3The 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). 
4

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).
5

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). 
6

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 
7

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 
8

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. 
9

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.