Castillo v. State, 13-02-458-CR.

• Decision Date: 06 October 2005
• Docket Number: No. 13-02-458-CR.,13-02-458-CR.
• Citation: 186 S.W.3d 21
• Parties: Felix CASTILLO, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

186 S.W.3d 21

Felix CASTILLO, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 13-02-458-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

October 6, 2005.

Rehearing Overruled March 23, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Joseph A. Connors, III, Victoria Guerra, McAllen, for appellant.

Theodore C. Hake, Asst. Crim. Dist. Atty., Amy Howell Alaniz, Asst. Dist. Atty., Edinburg, for appellee.

Before Justices YAÑEZ, CASTILLO, and GARZA.

OPINION

Opinion by Justice GARZA.

Felix Castillo, Jr. challenges his convictions for murder and attempted capital murder by 21 issues; however, his brief addresses only the following five issues: (1) appellant's convictions are barred by the doctrine of double jeopardy; (2) appellant received ineffective assistance of counsel; (3) the trial court erred by failing to hold a hearing to determine whether appellant had knowingly waived an alleged conflict of interest resulting from his counsel's brief dual representation of appellant and one of his co-defendants; (4) the trial court erred by admitting evidence of extraneous offenses because the State did not provide adequate notice of its intent to offer such evidence; and (5) the trial court erred by denying appellant's oral request for severance of defendants and oral request for mistrial. To the extent appellant seeks to challenge his convictions based on any other issues, his brief fails to present anything for this Court to review, as it does not contain a clear and concise argument for the contentions made, together with appropriate citations to authorities and to the record. See TEX.R.APP. P. 38.1(h). For the reasons that follow, we overrule appellant's five issues and affirm the judgment of the trial court.

Background

Francisco "Frank" Sanchez was killed in a drive-by shooting on December 31, 2000. Rafael Almanza was shot in the same incident, but he survived. Appellant was charged by indictment with one count of murder for the killing of Sanchez and one count of attempted capital murder for trying to kill both Sanchez and Almanza. Appellant was tried jointly with two co-defendants: his wife Mary Socorro Avila Castillo ("Mary"), who was acquitted of the murder and attempted capital murder charges but convicted of tampering with evidence for disposing of the murder weapon, and Mary's cousin, Javier Hernandez Reyes ("Javier"), who was acquitted of the murder and attempted capital murder charges. Appellant was convicted of murder and attempted capital murder, and this appeal ensued.

I. Double Jeopardy

In his first issue, appellant asserts that he has been punished twice for the murder of Frank Sanchez. Specifically, he argues that, because he was convicted and punished for Sanchez's murder, the State should not have been able to use an attempt to murder Sanchez as part of the attempted capital murder charge. Although appellant failed to raise any double jeopardy objection before the trial court, see TEX.R.APP. P. 33.1, a double jeopardy claim may be raised for the first time on appeal if (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and (2) enforcement of usual rules of procedural default serves no legitimate state interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim.App.2000).

The Fifth Amendment guarantee against double jeopardy consists of three separate constitutional protections: first, it protects against a second prosecution for the same offense after acquittal; second, it protects against a second prosecution for the same offense after conviction; and third, it protects against multiple punishments for the same offense. Lopez v. State, 108 S.W.3d 293, 295-96 (Tex.Crim. App.2003). Appellant has raised an issue relating to the "multiple punishments" aspect of the double jeopardy doctrine. The Fifth Amendment's multiple punishments prohibition is violated if a defendant "is convicted of more offenses than the legislature intended." Ex Parte Ervin, 991 S.W.2d 804, 807 (Tex.Crim.App.1999) (citing Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985)). The legislature is endowed with the power to establish and define criminal offenses. Ex parte Hawkins, 6 S.W.3d 554, 556 (Tex. Crim.App.1999). The Double Jeopardy Clause puts little, if any, limitation on this power. Id. In Blockburger, the United States Supreme Court stated, "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The court of criminal appeals has explained that, in the multiple punishments context, the Blockburger test is simply a rule of statutory construction, which is useful in attempting to ascertain legislative intent. Ervin, 991 S.W.2d at 807 (citing Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)). The Blockburger test cannot negate a clearly expressed legislative intent to impose multiple punishments. Id. (citing Hunter, 459 U.S. at 368, 103 S.Ct. 673). The status of the Blockburger test as a "mere rule of statutory construction" raises an inverse conclusion as well: the Blockburger test cannot authorize two punishments where the legislature clearly intended only one. Id. And that status raises the possibility that there exist other rules of statutory construction that may be employed to help ascertain whether a legislature intended multiple punishments. Id. Other (nonexclusive) considerations relevant to determining whether the legislature intended multiple punishments are (1) whether the offenses are contained within the same statutory section, (2) whether the offenses are phrased in the alternative, (3) whether the offenses are named similarly, (4) whether the offenses have common punishment ranges, (5) whether the offenses have a common focus (i.e., whether the "gravamen" of the offenses is the same) and whether that common focus tends to indicate a single instance of conduct, (6) whether the elements that differ between the offenses can be considered the "same" under an imputed theory of liability that would result in the offenses being considered the same under Blockburger (i.e., a liberalized Blockburger standard utilizing imputed elements), and (7) whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes. Id. at 814.

A. The Blockburger Test

Review of the statutory elements of the charged offenses shows that murder and attempted capital murder (based on an attempt to commit multiple murders) are not the same offense under the Blockburger test. Each offense requires proof of a fact which the other does not. See Blockburger, 284 U.S. at 304, 52 S.Ct. 180. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2003). A person commits the offense of attempted capital murder if he specifically intends to commit the offense of capital murder (here, the murder of more than one person during the same criminal transaction) and does an act amounting to more than mere preparation that tends but fails to effect the commission of capital murder. TEX. PENAL CODE ANN. §§ 15.01(a) (Vernon 2003), 19.03(a)(7)(A) (Vernon Supp.2004-05). Each offense thus requires proof of a fact which the other does not: (1) murder requires the death of an individual and attempted capital murder does not, and (2) attempted capital murder requires an intent to kill more than one person and murder does not. The offenses are therefore different under the Blockburger test. See Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

B. Other Considerations

As explained above, in the context of multiple punishments, the Blockburger test is a "mere rule of statutory construction." Ervin, 991 S.W.2d at 807. The ultimate inquiry is whether the legislature intended to permit multiple punishments. Id. at 814. To conduct this inquiry, we must consider not only the Blockburger test but also the other nonexclusive factors enumerated by the court of criminal appeals in Ervin. See id. at 814. In this case, these factors militate against a conclusion that the charged offenses are the same for double jeopardy purposes: (1) the statutory provisions for each offense are not located in the same section, see TEX. PENAL CODE ANN. §§ 15.01(a), 19.02(b)(1), 19.03(a)(7)(A); (2) the offenses are not phrased in the alternative; (3) they are similarly named only in that the titles of both offenses include the term "murder"; (4) they do not necessarily have the same punishment range;¹ (5) the offenses do not have a common focus tending to indicate a single instance of conduct because the gravamen of murder is the intentional killing of a person, whereas the focus of attempted capital murder is the intentional attempt to kill more than one person; (6) the offenses are not the same under Blockburger; and (7) we are unaware of any legislative history containing an articulation of an intent to treat the offenses as the same or different offenses for double jeopardy purposes.

Based on these considerations, we conclude that the charged offenses are not the same for the purpose of double jeopardy. Accordingly, appellant's first issue is overruled.

II. Ineffective Assistance of Counsel

In his second issue, appellant argues he was provided ineffective assistance of counsel because his trial counsel (1) failed to withdraw from representing appellant after discovering that he had a conflict of interest, (2) failed to file a motion for severance of defendants on behalf of appellant, (3) failed to file a motion for new trial, and (4) abandoned appellant prior to the deadline for...