Opinion filed June 2 8 , 2018



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 7

- 00 218

- 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 T he jury assessed punishment at confinement for five

years. T he trial court sentenced Appellant in accordance with the verdict and also ordered that Appellant pay court costs and attorney’s fees.

1 See T EX

. P EN AL C ODE A NN

. § 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 Walm art in Sweetwater. Benjamin Alexander, who was employed by Walmart as an “ a sset
p rotection a ssociate ” at the time , saw Appellant and the woman grab multiple items from the laundry detergen t a isle
, 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 b y a metal fence and
contains a gate that leads to the parking lot. Walm art considers the gate the “ last point of sale ” for the garden center . Alexander testified that “any shoplifter has to bypass the last point

- of

- sa le [for Walmart] to consider it as a theft.” Appellant and the woman, a long with the child, walked out the gate with out paying for the
concealed merchandise

. As Appellant, the woman, and the child moved just outside the gate
, Alexander approached them

. Alexander positione d 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” in to the parking lot
, so Alexander “hollered” at Appellant to come back

. Appellant ran toward his vehicle

. 2 But, a s Alexander was pulling the woman back into the gate , Appellant returned.

2 Alexander believed that Appellant “might have” placed some of t he stolen items in his vehicle, but he could not tell if Appella nt 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 sta rted swinging his arms at me.” Appellant then grabbed the child and left the W alm art property. The woman wa s apprehended
, and Appellant never came back. The police found stolen merchandise in Appellant’s vehicle a nd on the ground where the st ruggle 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 de fendant 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. T heft and assault are lesser included offenses of robbery, as charged in the indictment

. Appellant claims, and the State agrees , that theft and assault a re lesser
included offense s 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 p arte 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 Walm art was within the range of a misdemeanor theft, see P ENAL § 31.03( e) (West Supp. 2017) , and that the assault by Appellant upon Alexander would constitute a misdemeanor assault
, s ee 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 p arte 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, knowing ly, or recklessly cause bodily injury to Benjamin Alexander by pulling on Benjamin Alexander’s arm and swinging his fists a t 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 P ENAL § 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 T EX

. C ODE C RIM

. P ROC

. A NN

. art. 37.09(1) (West 2006) (an offense is a lesser included offense if “it is established b y 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, knowi ngly, 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 P ENAL § 22.0 1 (defining “assault”). A ssault is a lesser included offense of robbery in this case because the indictment alleged that Appellant “intentionally, knowingly, or recklessly caused bodily injury.” See C RIM

. P ROC

. 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 t hose lesser included offense s 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 “negat es 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. S tate , 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).
T his court does “not consider whether t he 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 A lexander

. See
Sweed v. State , 351 S.W.3d 63, 69 (Tex. Crim. App. 2011) (if State could not prove “in the course of committin g theft,” then the theft and assault were separate events).6

We note that
, under the current robbery statute, the l egislature “as signed 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.” P ENAL § 29.01(1). The
term “immediate f

light” 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]av ing a direct impact; without an intervening agency.”
Sweed
, 351 S.W.3d at 6 9 n.5 (quoting B LACK ’ S L AW D ICTIONARY 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 cause d 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 f

rom the point that Appellant passed the “last point of sale” with the stolen items to when Appellant came back an d 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 return ed 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.2d7

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 assaul t). Appellant did not successfully escape from Walm art after the theft ; rather, he remai ned in the vicinity
of the Walm art 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 bet ween 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 an d 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 f light
from the the ft, 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 g otten 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 ha d some of [the items] on him.” Several questions later, Alexander explained that
, after Appellant ran toward his vehicle, Alexander left it up to his ass istant to chase after Appellant and that
Alexander did n ot expect Appellant to return. W e disagree that this testimony8

constitutes affirmative evidence that negates the aggravating el ement 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 t he course of committing theft when he
assaulted Alexander

. Appellant also points to the testimony of Kevin Webb, an a sset protection manager at Walm art , 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 [ A ppellant] after [ A ppellant] was in the parkin g lot fleeing toward his car.” We note that Webb only testified that Appellant fled the scene. While it is true that no
Walm art employee pursue d 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. T he trial court did not err when it
refused t o submit a charge on the lesser included offenses of theft and assault
because there was no evidence that A ppellant
, 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 ent itled 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 2 8 , 2018 Do not publish

. See T EX

. R. A PP

. 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.