                                                                        PD-0320-15
                                                       COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 5/13/2015 12:39:10 AM
                                                       Accepted 5/15/2015 10:02:55 AM
                                                                        ABEL ACOSTA
                    No. PD-0320-15                                              CLERK
  _____________________________________________________

     IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                   AT AUSTIN, TEXAS
  _____________________________________________________

                JOHNNY GABRIEL CASTRO

                                   Appellant-Petitioner

                            vs.


                    THE STATE OF TEXAS

                                  Appellee-Respondent
  _____________________________________________________

          On Petition for Discretionary Review from the
             Third Court of Appeals, Travis County
               Appeal Number 03-12-00730-CR
  _____________________________________________________

  APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
  _____________________________________________________


                                        GREGORY SHERWOOD
                                                          Attorney
                                                 P.O. Box 200613
     May 15, 2015
                                        Austin, Texas 78720-0613
                                                   (512) 484-9029
                                          State Bar No. 18254600

                                  Attorney for Appellant-Petitioner
                                   JOHNNY GABRIEL CASTRO

Oral argument requested
                      Identity of Parties and Counsel

       No. PD-0320-15; Johnny Gabriel Castro v. The State of Texas

Johnny Gabriel Castro (Defendant – Appellant):

Johnny Gabriel Castro
TDCJ #1780110
Allred Unit
2101 FM 369 North
Iowa Park, Texas 76367

Trial Counsel:                                Appellate Counsel:

Bradley Urrutia (appointed)                   Gregory Sherwood (appointed)
801 West Oltorf                               P.O. Box 200613
Austin, Texas 78704                           Austin, Texas 78720-0613

Shelly Troberman (2 nd chair)
512 E. 11 th Street, #110
Austin, Texas 78701

The State of Texas (Plaintiff – Appellee):

Beverly Mathews (trial)
Stephanie McFarland (trial)
M. Scott Taliaferro (appeal)
Travis County Assistant District Attorneys
PO Box 1748
Austin, Texas 78767

Trial Court:

Hon. Brenda Kennedy
403 rd District Court, Travis County, Texas
P.O. Box 1748
Austin, Texas 78767



                                       i
                                         Table of Contents

Identity of Parties and Counsel ....................................................................... i

Table of Contents .......................................................................................... ii

Table of Authorities ...................................................................................... iv

Statement Regarding Oral Argument ............................................................. 1

Statement of the Case ..................................................................................... 2

Statement of Procedural History .................................................................... 3

Questions Presented for Review .................................................................... 3

         Question 1: Did the Third Court of Appeals err in holding
         that Castro did not timely present his amended motion for
         new trial to the trial court, thus waiving any error in the
         failure to hold an evidentiary hearing, when the following
         acts show that timely presentment did occur: (1) the amended
         new trial motion requested a hearing, (2) stated the date that a
         hearing must be held or the amended motion would be
         overruled by operation of law, (3) contained a proposed order
         setting hearing date, (4) was delivered by Mr. Castro’s
         appellate attorney to the trial court’s coordinator the same
         date it was filed, and (5) when Castro’s counsel later asked the
         court coordinator if a hearing would be set and presented a
         different proposed order for the judge’s signature (CR 96), the
         coordinator, after presenting that order, which the judge did not
         sign, stated that the trial judge would not set a hearing, but
         would instead let the amended new trial motion be overruled
         by operation of law? ............................................................................ 3

         Question 2: Should this court define what acts constitute
         presentment of a motion for new trial, so that the bar will
         know what acts actually constitute presentment? Or should
         this court simply abolish the requirement of presentment of

                                                      ii
         a motion for new trial altogether? ........................................................ 4

Argument Amplifying Reasons for Granting Review ................................... 4

         Facts Related to the Questions Presented ............................................ 4

         The Third Court Erred in Holding that the Record
         did not Show Timely Presentment of the Amended
         Motion for New Trial .......................................................................... 8

         Reasons for Granting Review ............................................................ 11

         This Court Should Either Define What Constitutes Presentment,
         or Abolish the Presentment Requirement Altogether ........................ 13

Conclusion and Prayer for Relief ................................................................. 16

Certificate of Service ................................................................................... 17

Certification of Word Count Compliance .................................................... 17

Appendix

Third Court of Appeals’ March 13, 2015
Unpublished Memorandum Opinion

Defendant’s Amended Motion for New Trial, including
Affidavit of Brittany Banda and proposed Order Setting
Hearing on Defendant’s Amended Motion for New Trial,
filed Nov. 1, 2012 (CR 86-92)

Unsigned Proposed Order Denying Defendant’s Amended
Motion for New Trial Without an Evidentiary Hearing, with
Handwritten Notations by Defendant’s Appointed Attorney
on Appeal, filed Nov. 15, 2012 (CR 96)




                                                     iii
                                       Table of Authorities

Cases

Butler v. State, 6 S.W.3d 636
(Tex. App. – Houston [1st Dist.] 1999, pet. ref’d) ..................................... 8, 9

Carranza v. State, 960 S.W.2d 76 (Tex. Crim. App. 1998) ................... 12, 13

Estrella v. State, 82 S.W.3d 483
(Tex. App. – San Antonio 2002, pet dism’d) ............................................. 8, 9

Oestrick v. State, 939 S.W.2d 232
(Tex. App.-Austin 1997, pet. ref’d) ............................................................... 9

Owens v. State, 832 S.W.2d 109
(Tex. App. – Dallas 1992, no pet.) ................................................................. 9

Rozell v. State, 176 S.W.3d 228 (Tex. Crim. App. 2005) ............................ 13

Stokes v. State, 277 S.W.3d 20 (Tex. Crim. App. 2009) ................................ 9

Statutes and Rules

Tex. R. App. P. 9.4(i)(1) .............................................................................. 17

Tex. R. App. P. 21.3(e) .................................................................................. 5

Tex. R. App. P. 21.6 ....................................................................................... 6

Secondary Authorities
Dix & Schmolesky, Texas Practice: Criminal Practice
& Procedure, § 50.16, vol. 43A, p. 640 (3d ed. 2011) ................................ 11

Maloney & Teague, Texas Criminal Practice Guide,
§ 80.01[4], p. 80-16 of Rel. 77 (Dec. 2009) ................................................. 11




                                                     iv
                            No. PD-0320-15
     _____________________________________________________

        IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                      AT AUSTIN, TEXAS
     _____________________________________________________

                       JOHNNY GABRIEL CASTRO

                                             Appellant-Petitioner

                                     vs.


                          THE STATE OF TEXAS

                                     Appellee-Respondent
     _____________________________________________________

             On Petition for Discretionary Review from the
                Third Court of Appeals, Travis County
                  Appeal Number 03-12-00730-CR
     _____________________________________________________

     APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
     _____________________________________________________

TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

                    Statement Regarding Oral Argument

      Mr. Castro’s court-appointed counsel requests oral argument. While

the issue of whether the Third Court of Appeals erred in holding that timely

presentment of the amended motion for new trial may be adequately

presented in the record and briefs, this court may have questions for counsel

                                      1
on: (1) whether this court should define what acts constitute presentment of

a motion for new trial, so that the bar will know how to present a motion for

new trial, (2) whether this court should instead continue to decide this issue

on a case-by-case basis, which frequently results in cases holding what does

not constitute presentment, instead of stating what actions do satisfy the

presentment requirement, or (3) whether this court should abolish the

presentment requirement altogether.

                             Statement of the Case

      Johnny Gabriel Castro seeks discretionary review of the attached

memorandum opinion of the Third Court of Appeals, which held that he

failed to preserve error for appellate review on whether the judge of the 403 rd

District Court of Travis County, Texas (Hon. Brenda Kennedy), abused her

discretion in failing to hold an evidentiary hearing on Mr. Castro’s amended

motion for new trial, based on its opinion that Castro failed to timely present

that amended motion. Slip op. at 1-2 and 7-12. The other issues raised in

the appeal, whether the evidence supported a knowing or intentional mental

state, and whether the convictions for capital murder and the lesser-included

offense of felony murder against the same decedent violated the double

jeopardy clause , slip op. at 12-16, are not discussed in this petition.



                                        2
                       Statement of Procedural History

      The Third Court of Appeals vacated the conviction and sentence for

the lesser-included offense of felony murder, held that Mr. Castro did not

preserve error for appellate review on whether the trial court abused its

discretion in failing to hold an evidentiary hearing on Castro’s amended

motion for new trial, Clerk’s Record (“CR”) 86-92, and affirmed the

convictions for capital murder and injury to a child in its unpublished March

13, 2015 memorandum opinion. This court granted an extension of time to

file this petition for discretionary review until May 13, 2015.

                       Questions Presented for Review

      Question 1: Did the Third Court of Appeals err in holding that
      Castro did not timely present his amended motion for new trial
      to the trial court, thus waiving any error in the failure to hold an
      evidentiary hearing, when the following acts show that timely
      presentment did occur: (1) the amended new trial motion
      requested a hearing, (2) stated the date that a hearing must be
      held or the amended motion would be overruled by operation of
      law, (3) contained a proposed order setting hearing date, (4)
      was delivered by Mr. Castro’s appellate attorney to the trial
      court’s coordinator the same date it was filed, and (5) when
      Castro’s counsel later asked the court coordinator if a hearing
      would be set and presented a different proposed order for the
      judge’s signature (CR 96), the coordinator, after presenting that
      order, which the judge did not sign, stated that the trial judge
      would not set a hearing, but would instead let the amended new
      trial motion be overruled by operation of law?




                                       3
      Question 2: Should this court define what acts constitute
      presentment of a motion for new trial, so that the bar will know
      what acts actually constitute presentment? Or should this court
      simply abolish the requirement of presentment of a motion for
      new trial altogether?

             Argument Amplifying Reasons for Granting Review

Facts Related to the Questions Presented:

      Pages 2 through 7 of the Third Court’s memorandum opinion provide

an adequate discussion of the underlying facts which led to Mr. Castro’s

indictment and trial for three counts: (1) capital murder, (2) the lesser-

included offense of felony murder which was vacated on double jeopardy

grounds, and (3) injury to a child, all involving the same decedent. After the

jury found Castro guilty of all three offenses, CR 62-64 (pdf 66-68), the jury

heard punishment evidence and imposed 60 years for the felony murder

count, and another 60 years for the injury to the child count. CR 52-53, pdf

56-57. The trial court assessed the mandatory punishment of life without

parole for the capital murder conviction, as the State did not seek the death

penalty. Reporter’s Record (“RR”) vol. 7, p. 7, l. 3-11. The district court

ordered that these sentences run concurrently. RR, vol. 7, pp. 63-64. The

written judgments of conviction are at CR 73-78, pdf 77-82.




                                        4
      Castro’s appointed trial counsel filed a motion for new trial on

October 12, 2012, the same day the judgments were entered, CR 73-78, pdf

77-82, asking for a new trial based on the verdict being contrary to the law

and the evidence, and in the interest of justice. CR 69, pdf 73. This new

trial motion also contained a “Presentment of Motion for New Trial,” which

stated the motion was presented within 10 days of its filing, citing Tex. R.

App. P. 21.6, and signed by appointed trial counsel. CR 69, pdf 73.

      The undersigned attorney was appointed for appeal on October 23,

2012. CR 93, pdf 97. After investigating the case and learning of a witness

(Brittany Banda), who would have presented testimony of a cause of death

that was not homicidal, but who did not testify at trial because of threats

made against her, see CR 90-91, pdf 94-95, attached as an appendix, Mr.

Castro’s appointed appellate counsel timely filed a November 1, 2012

amended motion for new trial. See CR 86-92, pdf 90-96, attached as an

appendix. The amended motion for new trial, argued that Ms. Banda’s

testimony would have presented a non-criminal cause of death of the child,

and that she was prevented from testifying by threats of others, including her

child’s father, thus warranting a new trial under Tex. R. App. P. 21.3(e),

which provides in part, “The defendant must be granted a new trial, or a new



                                       5
trial on punishment, for any of the following reasons: (e) when a material

defense witness has been kept from court by force, threats, or fraud. . . .”

CR 87, pdf 91, attached. The November 1, 2012 amended motion for new

trial informed the trial court that: (1) the motion was timely filed since it was

due by November 12, 2012, (2) that a hearing must be held by December 26,

2012 (75 days after judgment), or it would be overruled by operation of law,

(3) asked for an evidentiary hearing since it cited matters outside the record

and included witness Brittany Banda’s affidavit proffering her testimony and

stating why she did not testify at trial, and (4) included a proposed order

setting a hearing on this amended new trial motion. CR 86-92, pdf 90-96,

attached. The amended new trial motion also contained a more detailed

Certificate of Presentment, which stated, “I certify that I am counsel for the

defendant in this case and that I presented this motion to the trial court

pursuant to Tex. R. App. P. 21.6 by delivering a copy to the court

coordinator for the 403 rd District Court on November 1, 2012. [/s/] Gregory

Sherwood”. CR 88, pdf 92, attached, bracketing added.

      On November 15, 2012, Mr. Castro’s appellate counsel went to the

403 rd District Court Coordinator’s office to ask if a hearing was going to be

set on the amended motion for new trial, and to present a proposed order



                                        6
denying the amended motion for new trial for the trial court’s signature if the

court did not want to set a hearing, or wanted the motion be overruled by

operation of law. CR 96, pdf 100, attached as appendix. The court

coordinator walked the order back to the district judge’s office, came out a

few moments later, and informed this attorney that the trial judge would not

sign the proposed order, and intended to let the amended new trial motion be

overruled by operation of law. This writer made handwritten notes to that

effect on the proposed order, and filed it with the District Clerk’s office on

Nov. 15, 2012. CR 96, pdf 100, attached.

      Mr. Castro filed his brief in the Third Court of Appeals on May 10,

2013,1 arguing in part that the trial court abused its discretion in failing to

hold a hearing on the amended motion for new trial. Slip op., at 1, attached.

The State filed its brief on October 7, 2013 arguing that timely presentment

was not shown, and therefore any error in the trial court’s failure to hold a

hearing was waived. Castro’s counsel filed his reply brief, as well as a

motion to abate the appeal, both on October 28, 2013. The Third Court




      1
                    The dates discussed in this paragraph can be confirmed by the
             Third Court of Appeals’ Internet docket sheet, viewable at:
             www.search.txcourts.gov/Case.aspx?cn=03-12-00730-CR&coa=coa03.

                                         7
denied the motion to abate the appeal three days later on October 31, 2013,

and issued its memorandum opinion on March 13, 2015, attached.

The Third Court Erred in Holding that the Record did not
Show Timely Presentment of the Amended Motion for New Trial:

      Pages 7-12 of the Third Court’s opinion discuss why that court

believed that the record did not show sufficient evidence of timely

presentment of the amended motion for new trial. The court summarized the

law in this area as follows:

             The trial court need not conduct a hearing if the motion
      for new trial is not timely presented to the trial court. [Citations
      omitted.] The presentment requirement directs a defendant to
      do more than simply file the motion for new trial with the trial
      court clerk. [Citation omitted.] This requirement is intended to
      ensure that the defendant puts the trial court on actual notice
      that he wants the trial court to take some action on the motion
      for new trial such as a ruling or a hearing on it. [Citation
      omitted.]

             Presentment may be proven in many ways, including by
      showing the judge’s signature or notation on the proposed order
      or court’s docket sheet or a ruling on the motion. [Citations
      omitted.] The presentment must be directed to the trial court or
      another authorized to act on behalf of the trial court. [Citation
      omitted.] Presentation of a motion to the court coordinator can
      satisfy the presentment requirement. Estrella v. State, 82
      S.W.3d 483, 485-86 (Tex. App. – San Antonio 2002, pet
      dism’d); Butler v. State, 6 S.W.3d 636, 641 (Tex. App. –
      Houston [1st Dist.] 1999, pet. ref’d). Examples of evidence that
      the court of criminal appeals has found sufficient to show
      presentment include notes on court-generated documents like
      docket sheets, which are most likely made by court personnel


                                       8
and demonstrate court knowledge of the motion and thus
presentment of the motion – though a judge’s signature is not
required. Stokes v. State, 277 S.W.3d [20,] at 24-25 [(Tex.
Crim. App. 2009)]. In Estrella, the San Antonio court found
that a court coordinator’s filling out a “case setting form” and
setting the case for a hearing satisfied the presentment
requirement sufficiently to allow the court to consider whether
the motion for new trial merited a hearing. 82 S.W.3d at 486.
In Butler, the defendant informed the court coordinator about
his timely filed motion for new trial and asked for a hearing, the
court coordinator made an entry in the case management system
scheduling the hearing, and the court of appeals found that
Butler had sufficiently shown presentment of the motion. 6
S.W.3d at 638.

       Case law also provides examples of what evidence does
not show presentment. The court of criminal appeals wrote,
“An unsigned notation on [a proposed order] cannot confidently
be attributed to the court.” Stokes, 277 S.W.3d at 24. The
Dallas Court of Appeals held that a counsel’s “Certification of
Service and Presentment” stating that the motion was presented
to the trial judge did not sufficiently prove presentment. See
Owens v. State, 832 S.W.2d 109, 111 (Tex. App. – Dallas 1992,
no pet.). The Owens court noted the absence of a proposed
order setting a date on a hearing on the motion, of a separate
motion for a hearing, and of any written notation that the
motion was ever actually presented to the court or that the court
was ever put on notice that the appellant wanted a hearing. Id.
Relying on Owens, this Court held that “a self-serving
statement by defense counsel, without more, is not sufficient
evidence of presentment to the trial court.” Oestrick v. State,
939 S.W.2d 232, 235 n.3 (Tex. App.-Austin 1997, pet. ref’d).2

2
              Unlike Owens and Oestrick, in this case there was more than this
      attorney’s Certificate of Presentment showing that the amended motion
      for new trial was delivered to the court coordinator on Nov. 1, 2012, the
      date it was filed. The motion itself asked for an evidentiary hearing, it
      informed the trial court the date a hearing must be held or the motion
      would be overruled by operation of law, and it included a proposed order

                                   9
Slip op. at 7-9 (underlining added, citations omitted as noted, some

bracketing in original, case citation bracketing added by this writer).

      The Third Court of Appeals held that appellate review had not been

preserved on the issue of whether the trial court abused its discretion in

failing to hold a hearing on Castro’s amended motion for new trial, CR 68-

92, based on a lack of timely presentment to the trial court. Slip op. at 1-2

and 7-12. The Third Court held that, “Appellant’s motion for new trial was

overruled by operation of law and the record does not contain any objection

by appellant to the failure to conduct a hearing.3 [Citation omitted.] Neither

the November 1 Certificate of Presentment nor the handwritten November

15 note shows timely presentment of the motion for new trial under existing


             setting a hearing date. CR 86-92, pdf 90-96, attached. Additionally, this
             attorney then presented a second proposed order denying the amended
             motion for new trial without a hearing to the court coordinator on Nov. 15,
             2012, who presented it to the trial judge for her review, and then informed
             this attorney that the judge would not sign the order, but would instead let
             the amended new trial motion be overruled by operation of law. CR 96,
             pdf 100, attached. This writer made handwritten notations of these events
             on that order, and filed it with the district clerk that same day. Id.

                     Under the law as currently interpreted, a trial judge or court
             coordinator can prevent a defendant from proving timely presentment of a
             motion for new trial by refusing to sign an order, refusing to make a
             docket entry, and by court personnel’s refusal to make any notation on the
             order, docket sheet, or court-generated document.
      3
                      Apparently, the Third Court did not consider Appellant’s Motion
             to Abate Appeal, filed Oct. 28, 2013 and denied by that court on Oct. 31,
             2013, mentioned in passing at p. 1 of the slip opinion, as an objection to
             the trial court’s failure to hold a hearing.

                                          10
case law.” Slip op. at 10, attached. The appeals court also stated that, “We

are not accusing appellant’s counsel of dishonesty in his handwritten note,

but are applying the standards set out by the court of criminal appeals

regarding the nature of the proof necessary to show presentment to that

note.” Slip op. at p. 11, n. 5. (Citations omitted).

Reasons for Granting Review:

      The problem with the doctrine of presentment of a motion for new

trial is that frequently the case law tells members of the bar what does not

constitute presentment, instead of providing the bar with a clear-cut

definition of what acts would constitute presentment. As noted by two legal

treatises using identical language, “While Texas case law has shed little light

on what it means to “present” a motion for new trial, the Court of Criminal

Appeals consistently has held that the filing of a motion for new trial alone

is not sufficient to show presentment.” See Maloney & Teague, Texas

Criminal Practice Guide, § 80.01[4], p. 80-16 of Rel. 77 (Dec. 2009), and

Dix & Schmolesky, Texas Practice: Criminal Practice & Procedure, §

50.16, vol. 43A, p. 640 (3d ed. 2011). Citations omitted, underlining added.

This court has also admitted that, “This Court’s case law has shed little light




                                       11
on what it means to “present” a motion for new trial to the trial court.

Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998).

      In the case at bar, the Nov. 1, 2012 amended motion for new trial

asked for a hearing because it was based on matters outside of the record, the

amended motion included an affidavit from a witness who was prevented

from testifying by threats of force, threats or fraud, the amended motion

informed the trial judge of the dates that a hearing must be held or it would

be overruled by operation of law, and it contained a detailed certificate of

presentment stating that Castro’s appellate counsel delivered the amended

motion to the court coordinator the same day that it was filed. This case also

included the Nov. 15, 2012 notations by this writer on a second proposed

order denying the amended motion for new trial without a hearing, stating

that the order was delivered to the court coordinator, who presented it to the

trial judge, and that the coordinator informed this attorney that the trial court

would not sign the order, and would instead allow the amended new trial

motion to be overruled by operation of law. All of these events clearly show

that the amended new trial motion was timely presented to the trial court.

The only thing missing was a notation by either the trial judge or court

coordinator as to these events. But as stated above, at pages 9-10, footnote 2



                                        12
of this petition, if presentment can only be proven by either the trial court or

the trial court’s staff making these types of notations, with nothing that

appellant’s counsel does being sufficient to prove presentment, then all of

the trail courts in this state will be able to prevent appellants from preserving

appellate review on whether the trial court abused its discretion in failing to

hold a hearing on a motion for new trial by refusing to make such notations

on any court-generated documents, docket sheets, or proposed orders.

This Court Should Either Define What Constitutes Presentment,
or Abolish the Presentment Requirement Altogether:

      This court has stated that, “We have held that to present a motion in

the context of a motion for new trial, the defendant must give the trial court

actual notice that he timely filed a motion for new trial and requests a

hearing on the motion for new trial.” Rozell v. State, 176 S.W.3d 228, 230

(Tex. Crim. App. 2005). Instead of defining what acts constitute

presentment of a motion for new trial, this court has stated a non-exhaustive

list of examples, which may include obtaining the trial court’s ruling on the

motion for new trial, the judge’s signature or notation on a proposed order,

or a hearing date on the docket sheet. Carranza v. State, 960 S.W.2d 76, 79

(Tex. Crim. App. 1998). The problem with this case-by-case approach on

what acts constitute presentment is that too often, this court or the


                                       13
intermediate appellate courts, rule that the facts of that appeal did not

constitute presentment, leaving the bar of this state to continue to guess as to

what acts would meet the presentment requirement.

      In this petition, the facts showed that Castro’s appellate counsel (this

writer) did more than file an amended motion for new trial with the clerk,

which would clearly not show presentment. The amended motion requested

a hearing, contained a proposed order setting hearing date, informed the trial

court when that hearing needed to be held before it would be overruled by

operation of law, contained grounds for granting a new trial and an affidavit

from a witness who was prevented from testifying at trial by threats of force,

coercion or fraud, and contained a certificate of presentment by this writer

stating that the amended motion for new trial was hand-delivered to the

court coordinator the same date that the amended new trial motion was filed.

When no order setting hearing was signed, this attorney presented a second

proposed order, this time denying the amended motion for new trial without

a hearing, but this order was not signed by the trial judge, and the court

coordinator informed this writer that the court would not sign the proposed

order, but would instead allow it to be overruled by operation of law. Under

these circumstances, this court should hold that presentment of the amended



                                       14
new trial motion was shown, for it is clear that the trial court was provided

actual notice that a hearing on the amended motion for new trial was

requested.

      If this court were to actually define what acts constitute presentment

of a motion for new trial, appellants’ attorneys would actually know what

constitutes presentment, instead of engaging in the current practice of having

to guess whether the actions they have taken are sufficient to constitute

presentment, which would preserve appellate review of the trial court’s

failure to hold a hearing on a motion for new trial. Alternatively, this court

should consider eliminating the requirement of presentment altogether.

While presentment may serve the purpose of requiring that the trial court

receive actual notice that a hearing is requested on a new trial motion, the

continuing uncertainty as to what acts constitute presentment prevent

appellate review of this issue if the appellate court holds that the acts taken

in that case are insufficient. And as this writer suggested earlier in this

petition, under current case law, a trial court and that court’s staff can

prevent any appellate review of the failure to conduct a hearing on a motion

for new trial by simply refusing to sign any proposed orders for hearing or

orders ruling on the new trial motion, and by having court staff refuse to



                                        15
make any docket entry notations, or notations on the motions, court-

generated documents or proposed orders. Under this interpretation, an

appellant’s attorney will never be able to prove that he or she timely

presented a motion for new trial so long as the court and court staff refuse to

make any orders or docket entries or notations to that effect.

                       Conclusion and Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, appellant JOHNNY

GABRIEL CASTRO respectfully prays that this court grant this petition for

discretionary review, set this cause for oral argument and for briefing on the

merits, and that this court issue an opinion reversing the Third Court’s

March 13, 2015 opinion holding that Mr. Castro did not timely present his

amended motion for new trial, and instead hold that timely presentment did

occur. This court’s opinion should remand this case to the Third Court of

Appeals with instructions for it to abate this appeal and remand the case to

the 403 rd District Court of Travis County, Texas for an evidentiary hearing

on Castro’s amended motion for new trial. Once that hearing is held and a

decision is made by the 403 rd District Court on whether to grant or deny the

amended motion for new trial, the appeal should then be reinstated on the

Third Court of Appeals’ docket so that it may decide the merits of the 403 rd



                                       16
District Court’s decision on whether to grant or deny Castro’s amended

motion for new trial.

                                                        Respectfully submitted,

                                                      /s/ Gregory Sherwood

                                                    GREGORY SHERWOOD
                                                                       Attorney
                                                              P.O. Box 200613
                                                    Austin, Texas 78720-0613
                                                                (512) 484-9029
                                                  email: gsherwood@mail.com

                                              Attorney for Appellant-Petitioner
                                               JOHNNY GABRIEL CASTRO

                             Certificate of Service

      I certify that a true copy of this document was served on May 13,
2015 by email upon the Travis County District Attorney’s Office, P.O. Box
1748, Austin, Texas 78767 at the following email addresses:
AppellateTCDA@co.travis.tx.us and scott.taliaferro@co.travis.tx.us, and
upon the Office of the State Prosecuting Attorney, P.O. Box 13046, Austin,
Texas 78711 at its email address: information@spa.texas.gov.

                                                      /s/ Gregory Sherwood

                   Certification of Word Count Compliance

       According to the WordPerfect program used to create this document,
there are 3,331 words in this petition, excluding the portions listed in Tex. R.
App. P. 9.4(i)(1).
                                                      /s/ Gregory Sherwood




                                       17
APPENDIX
Third Court of Appeals’ March 13, 2015
  Unpublished Memorandum Opinion
      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00730-CR



                               Johnny Gabriel Castro, Appellant

                                                 v.

                                  The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-12-904069, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found Johnny Gabriel Castro guilty of capital murder and two other

offenses related to the death of his then-girlfriend’s seven-month-old daughter. The jury assessed

a punishment of life in prison for capital murder and also assessed punishments of sixty years

in prison for the offenses of felony murder and injury to a child. The trial court ordered that

these sentences run concurrently. Appellant contends that the trial court erred by refusing to hold

a hearing on his amended motion for new trial and by allowing that motion to be overruled by

operation of law. He urges that we either abate for a hearing on the motion or grant the motion

outright. He also contends that the evidence is insufficient to show that he acted intentionally or

knowingly in injuring and killing the child and that this Court should, therefore, (1) reverse the

conviction for capital murder and render an acquittal and (2) reverse the conviction for injury to a

child and remand for a new hearing on punishment. He argues alternatively that the convictions and

sentences for capital murder and murder of the same child violate the constitutional prohibition of
multiple punishments for the same offense and that we should vacate the murder conviction. We

will affirm the capital murder conviction, vacate the murder conviction and sentence, and affirm the

judgment in all other respects.


                                           BACKGROUND

                 The child victim was born in July 2010 to her mother, Veronica, who began

dating appellant about two months later.1 By February 2011, appellant, Veronica, and the child

were essentially living together in a succession of different relatives’ homes. Veronica testified

that appellant and her daughter bonded at first. As time went by, she said, that bond frayed. She

testified that appellant criticized the child daily as spoiled and jealous of him. Veronica testified that

appellant did not like when the baby cried and believed that Veronica should not have consoled

the crying child, but rather should have ignored her or disciplined her. Veronica said that once,

when the three were riding in a car together, appellant attempted to put his hand over the crying

baby’s mouth. Veronica testified that she stopped him from doing so, but when they arrived at

home appellant blocked her access to the baby, yelled at the baby, and tried again to cover the

baby’s mouth.

                 The weekend before February 28, 2011, appellant, Veronica, and her baby stayed with

appellant’s aunt. Veronica said that she and the baby slept in the aunt’s daughter’s room and that

appellant slept on the couch, although appellant’s aunt testified that appellant slept in the bedroom.

Appellant’s aunt also testified that the baby had bite marks on her arm that appellant confessed to

inflicting, although the aunt believed that the marks were more likely inflicted by Veronica.



        1
            Appellant was not this child’s father, although he later referred to himself as such.

                                                    2
                Veronica testified that on February 28, 2011, the child had mild diarrhea, but was not

too fussy. She said that she woke up and gave the baby a bottle and played with her for about an

hour in the living room. Veronica testified that this apparently disrupted appellant’s sleep because,

when she took the baby back to the bedroom for a nap, appellant burst2 into the room and said, “If

I can’t sleep, no one in this house can sleep.” She said he continued to yell to make sure the baby

stayed awake.

                Veronica had a job interview that afternoon at 1:30 and intended to leave her child

with her grandmother who lived near the interview site. Appellant drove Veronica to the interview,

arriving slightly late. As Veronica walked toward the office building, appellant volunteered to keep

the child rather than dropping her at Veronica’s grandmother’s apartment. Veronica assented

even though appellant had never taken care of her daughter by himself. Appellant’s aunt testified

that appellant had helped raise his brothers and sisters and that it was not unusual for him to

change a diaper.

                Veronica finished her interview around 3 p.m. and called appellant to come pick her

up. She said he told her that her daughter had fallen asleep and that he would come pick her up.

Less than fifteen minutes later, appellant called back and said that the child was blue and he

repeatedly said that he did not know what to do. Veronica told him to call 911 then went to the

hospital with her grandmother. Veronica testified that she thought it strange that, when she called

appellant again, he asked that she come see him instead of going to the hospital to be with her child.



        2
          On cross-examination, Veronica conceded that she did not tell police that appellant “burst”
into the room. She testified that she omitted that aspect initially because she did not then believe that
appellant had killed her daughter and had not wanted to say things that might get him wrongly
convicted.

                                                   3
                  A firefighter testified that he arrived at appellant’s aunt’s house at 3:25 p.m.

and found the baby limp, not breathing, and without a pulse. He administered cardiopulmonary

resuscitation until emergency medical technicians arrived. A second firefighter testified that

appellant said that when he went to wake the baby, he found her lying facedown in a pillow on the

bed. Paramedics were able to restore a pulse that improved as they went to the hospital.

                  At the hospital, however, Veronica learned that her child’s brain had swollen to the

point that the child was unlikely to survive. Tests the next morning confirmed that the child had no

brain activity. After family members held the child and said goodbye, life support was removed, and

the child died.

                  The medical director of the pediatric intensive care unit at Dell Children’s Hospital,

Rene Higgerson, testified that the child’s respiration was irregular even with the ventilator. She

found no external evidence of injury, no skeletal trauma, no bruising and no bleeding in the child’s

eyes or brain. She also found no sign of respiratory illness or influenza. Higgerson testified that she

would expect a developmentally appropriate seven-month-old child to resist intentional suffocation

and to be able to avoid suffocating accidentally absent unusual circumstances. She testified that it

is possible to suffocate someone to the point that death is not immediate, but follows when the

person’s injured brain swells too much. Another pediatrician, Dr. George Edwards, testified that

irreversible brain damage can occur after as little as two minutes without oxygen.

                  Travis County Deputy Medical Examiner Dr. Satish Chundru performed the autopsy

and found faint bruises on the front side of the child’s abdomen and on her forehead. He testified

that the bruising might have become visible after the child’s death. He testified that the abdominal

bruising might have come from a person pressing his thumbs into the child’s side. He conceded that


                                                    4
the bruising might be consistent with someone trying to wake the child. He also testified that the

forehead bruising might be consistent with an accidental head butt while shaking the child or while

forcing her head into an adult’s shoulder or chest in an attempt to soothe or quiet the child.

                Veronica testified that appellant told her “multiple, multiple stories” about what

happened with the child. She said that appellant told her on the day of the incident that he did not

know what had happened. She said he later told her he was in the bathroom and heard a thud when

the child fell off of the couch. Appellant reported that he squeezed the child to comfort her. She

recalled appellant saying another time that he fell asleep with the baby on the couch and accidentally

suffocated her, and also told a similar story saying they fell asleep on the bed. The jury saw a text

from appellant’s phone telling Veronica that the baby “did pass in my arms and i didnt kno it. But

im truly sorry for our babygurl and sorry that it was me.”3

                Police officers testified that, although they did not originally believe that

appellant intentionally killed the child, his conduct—including his manner during questioning

and his changing stories—led them to believe that he did. Austin Police Department Detective

Kerry Scanlon said that appellant originally told him that he gave the baby a bottle, moved all the

pillows and blankets off of the bed, and put the child on the bed. Scanlon said appellant told him

that he did not sleep with the baby that afternoon. Scanlon said that appellant told him that Veronica

called him at 3:05 p.m., he packed the car, and then he found the baby blue and called Veronica.

Scanlon testified that he was surprised that appellant took twelve minutes between these telephone

calls. He said that appellant was matter-of-fact in the interview and referred to the baby as jealous

and spoiled. APD Detective Brent Bailey testified that appellant’s phrasing when discussing the


       3
           Spelling, capitalization, and punctuation are as presented in the exhibit.

                                                   5
crucial events surrounding the baby’s death undercut his credibility. Bailey testified that appellant

first said that nothing happened, then drastically changed his story. Bailey also said that appellant

mentioned injuries to the child’s forehead and abdomen—the areas where faint bruises found by the

medical examiner were not seen by the treating physicians. APD Detective Anthony Nelson testified

that appellant said that he held the baby too tight and that she stopped breathing, but that he thought

she was breathing after he laid her down. Nelson said that appellant was controlling and thought

that police were following him when they were not. In the March 8, 2011 interview with police,

when asked how he thought the child died appellant said, “She suffocated.” When asked how,

appellant said, “I was holding her too tight. . . . She slowly stopped her breathing. I had her. Her

face was in my shoulder.” He also said. “It was not intentionally. I would not hurt that baby. . . .

I’m not saying I killed her.”

                After the jury found appellant guilty and the punishment was assessed on October 12,

2011, appellant filed a motion for new trial that same day asserting generally that the verdict was

against the law and evidence and that a new trial was in the interest of justice. On November 1,

2011, appellant filed an amended motion for new trial stating that a material defense witness,

Brittany Banda, was kept from testifying at trial by force or threats. See Tex. R. App. P. 21.3(e).

Appellant attached Banda’s affidavit to his motion. Banda stated that she stopped by the house

where appellant was staying and overheard him attempting to soothe the crying baby. She said that

she went in the house and that appellant told her that the baby had fallen. She stated that the baby,

who fell asleep while they were talking, looked pale as if sick. She stated that appellant told her that

the baby had been sick but that Veronica did not take her to the doctor. Banda stated that appellant

also told her that he wanted to end his relationship with Veronica, but that Veronica told him she


                                                   6
would hurt herself and the baby if he did. Banda said that appellant laid the baby on the bed and that

they talked in the living room for a while longer. She stated that, when appellant went to check on

the baby, they noticed that she was a light blue color. Appellant panicked and grabbed the child,

attempting to wake her, and told Banda to leave, which she did. Banda said that she would have

presented this evidence at the trial but for the fact that she was threatened and told not to testify by

others, including her own child’s father. The motion for new trial was overruled without a hearing

and by operation of law.


                                           DISCUSSION

               Appellant contends that the trial court erred by refusing to hold a hearing on his

amended motion for new trial and by allowing that motion to be overruled by operation of law. He

also argues that he should be acquitted of capital murder because the evidence is legally insufficient

to show that he acted intentionally or knowingly in causing the child’s death. He argues further that

we should reverse the finding of an intentional-or-knowing mental state with respect to the injury-to-

a-child conviction and remand for a sentence within the range appropriate for that offense with a

less culpable mental state. He also contends that the convictions for capital murder and murder of

the same child violate the constitutional prohibition of multiple punishments for the same offense.


The trial court did not abuse its discretion by overruling the motion for new trial without
holding a hearing on that motion.

               While appellant contends that the trial court should have held a hearing on his motion

for new trial, the State contends that appellant did not preserve this issue for appellate review.

               The trial court need not conduct a hearing if the motion for new trial is not timely

presented to the trial court. See Tex. R. App. P. 21.6 (requiring defendant to present motion for new

                                                   7
trial to trial court within 10 days of filing); see also Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim.

App. 2005) (right to hearing on motion for new trial is not absolute); Burrus v. State, 266 S.W.3d

107, 115 (Tex. App.—Fort Worth 2008, no pet.). The presentment requirement directs a defendant

to do more than simply file the motion for new trial with the trial court clerk. Stokes v. State,

277 S.W.3d 20, 21 (Tex. Crim. App. 2009). This requirement is intended to ensure that the

defendant puts the trial court on actual notice that he wants the trial court to take some action on the

motion for new trial such as a ruling or a hearing on it. Id.

                Presentment may be proven in many ways, including by showing the judge’s signature

or notation on the proposed order or court’s docket sheet or a ruling on the motion. See Stokes,

277 S.W.3d at 24-25; Carranza v. State, 960 S.W.2d 76, 79-80 (Tex. Crim. App. 1998); Rodriguez

v. State, 425 S.W.3d 655, 662-63 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The presentment

must be directed to the trial court or another authorized to act on behalf of the trial court. Carranza,

960 S.W.2d, at 79. Presentation of a motion to the court coordinator can satisfy the presentment

requirement. Estrella v. State, 82 S.W.3d 483, 485-86 (Tex. App.—San Antonio 2002, pet dism’d);

Butler v. State, 6 S.W.3d 636, 641 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Examples of

evidence that the court of criminal appeals has found sufficient to show presentment include notes

on court-generated documents like docket sheets, which are most likely made by court personnel and

demonstrate court knowledge of the motion and thus presentment of the motion—though a judge’s

signature is not required. Stokes, 277 S.W.3d at 24-25. In Estrella, the San Antonio court found that

a court coordinator’s filling out a “case setting form” and setting the case for a hearing satisfied the

presentment requirement sufficiently to allow the court to consider whether the motion for new trial

merited a hearing. 82 S.W.3d at 486. In Butler, the defendant informed the court coordinator about


                                                   8
his timely filed motion for new trial and asked for a hearing, the court coordinator made an entry in

the case management system scheduling the hearing, and the court of appeals found that Butler had

sufficiently shown presentment of the motion. 6 S.W.3d at 638.

               Case law also provides examples of what evidence does not show presentment. The

court of criminal appeals wrote, “An unsigned notation on [a proposed order] cannot confidently

be attributed to the court.” Stokes, 277 S.W.3d at 24. The Dallas Court of Appeals held that a

counsel’s “Certification of Service and Presentment” stating that the motion was presented to

the trial judge did not sufficiently prove presentment. See Owens v. State, 832 S.W.2d 109, 111

(Tex. App.—Dallas 1992, no pet.). The Owens court noted the absence of a proposed order setting

a date on a hearing on the motion, of a separate motion for a hearing, and of any written notation that

the motion was ever actually presented to the court or that the court was ever put on notice that the

appellant wanted a hearing. Id. Relying on Owens, this Court held that “a self-serving statement by

defense counsel, without more, is not sufficient evidence of presentment to the trial court.” Oestrick

v. State, 939 S.W.2d 232, 235 n.3 (Tex. App.—Austin 1997, pet. ref’d).

               Appellant cites two actions he contends show proper presentment. He included

a Certificate of Presentment below his attorney’s signature line on Defendant’s Amended Motion

for New Trial, filed on November 1, 2012. This printed certificate states that the attorney presented

the motion to the court by delivering a copy to the court coordinator. Appellant also attached a

proposed order setting a hearing to his motion. On November 15, 2002, appellant filed a proposed

Order Denying Defendant’s Amended Motion for New Trial Without an Evidentiary Hearing. On

this printed and unsigned order, appellant’s attorney handwrote the following note: “Nov. 15,

2012—presented this proposed order to court coordinator, who presented it to J. Kennedy. Judge


                                                  9
indicated she would let 75-day period elapse and did not sign proposed order.” Appellant’s attorney

signed this handwritten statement and the clerk file-stamped the proposed order containing it.

                The State contends that appellant did not show that he timely and properly presented

the amended motion to the trial court and, therefore, did not preserve the failure to hold a hearing

as an issue reviewable on appeal. The State argues that both the certification and the handwritten

note are self-serving statements by defense counsel. The State also contends that the note written

on a copy of a proposed order denying a hearing does not show presentment of the motion itself

and, because it is dated November 15, does not show presentment of the motion for new trial within

ten days of filing. The State argues that appellant did not preserve the hearing issue because he

did not obtain a ruling or object to the refusal to rule on his request for a hearing. See Tex. R. App.

P. 33.1(a)(2). “Where a motion for new trial is overruled by operation of law, the trial court’s failure

to conduct a hearing, without more, is simply a ‘failure to rule’ on the request for a hearing,” and

the claim is preserved for review only if the defendant has objected to the failure to rule. Oestrick,

939 S.W.2d at 235.

                We conclude that appellant has not preserved for appellate review any error in the

trial court’s failure to hold a hearing on the motion for new trial either through objection or timely

presentment of the motion for new trial. Appellant’s motion for new trial was overruled by operation

of law and the record does not contain any objection by appellant to the failure to conduct a hearing.

See id. Neither the November 1 Certificate of Presentment nor the handwritten November 15 note

shows timely presentment of the motion for new trial under existing case law. The November 1

Certificate of Presentment provides, “I certify that I am counsel for the defendant in this case and

that I presented this motion to the trial court pursuant to Tex. R. App. P. 21.6 by delivering a copy


                                                  10
to the court coordinator for the 403rd District Court on November 1, 2012.” This certification is

similar to the statement in the Certification of Service & Presentment that was part of the motion for

new trial in Owens that “[t]he undersigned attorney for Defendant hereby certifies to the Court that

true and correct copies of the foregoing were presented to the Trial Judge . . . .” Owens, 832 S.W.2d

at 111. The Owens court deemed this certification “no evidence” of presentment. Id.; see also

Oestrick, 939 S.W.2d at 235 n.5 (disregarding as insufficient evidence of presentment “a statement

in appellant’s notice of appeal that the motion for new trial was presented to the court ‘through

counsel.’”). Appellant’s counsel’s November 15 handwritten note on the unsigned proposed

Order Denying Defendant’s Amended Motion for New Trial Without an Evidentiary Hearing stating

that the order had been presented to the judge by the court coordinator was made three days after the

ten-day period for presentment lapsed.4 See Tex. R. App. P. 21.6; see also id. 4.1(a). Further, this

notation is by a party on a party-generated document rather than a note on a court-generated

document like a docket sheet or written by the judge or court personnel—distinctions that weigh

against a showing that the motion was presented to the trial court.5 See Stokes, 277 S.W.3d at 24-25;

Carranza, 960 S.W.2d at 80 n.6.




        4
          The rule permits the court to exercise discretion to allow presentment of the motion for new
trial more than ten days after the motion is filed (but less than 75 days after the sentence is imposed),
Tex. R. App. P. 21.6, and the November 15 notation was filed within that window. But, after the
initial ten-day period, the rule by its own terms makes the court’s decision of whether to allow
presentment discretionary. See id. There is no showing that the trial court abused its discretion in
choosing not to permit presentment of the motion.
        5
         We are not accusing appellant’s counsel of dishonesty in his handwritten note, but are
applying the standards set out by the court of criminal appeals regarding the nature of the
proof necessary to show presentment to that note. Stokes v. State, 277 S.W.3d 20, 25 (Tex. Crim.
App. 2009); Carranza v. State, 960 S.W.2d 76, 78 (Tex. Crim. App. 1998).

                                                   11
                The record does not show that appellant timely presented his motion for new trial to

the trial court or objected to the trial court’s failure to hold a hearing. Appellant has not shown that

the trial court erred or abused its discretion by failing to hold a hearing on his motion for new trial.

See Stokes, 277 S.W.3d at 24-25; see also Oestrick, 939 S.W.2d at 235.


The evidence is sufficient to support the findings that appellant acted knowingly or
intentionally.

                Appellant argues that the State failed to show that he had the requisite intent when

he injured and killed the child.6 The court instructed the jury on the following culpable mental states

relating to the offenses in this case:


        (a) A person acts intentionally, or with intent, with respect to the nature of his
        conduct or to a result of his conduct when it is his conscious objective or desire to
        engage in the conduct or cause the result.

        (b) A person acts knowingly, or with knowledge, with respect to the nature of his
        conduct or to circumstances surrounding his conduct when he is aware of the nature
        of his conduct or that the circumstances exist. A person acts knowingly, or with
        knowledge, with respect to a result of his conduct when he is aware that his conduct
        is reasonably certain to cause the result.

        (c) A person acts recklessly, or is reckless, with respect to circumstances surrounding
        his conduct or the result of his conduct when he is aware of but consciously
        disregards a substantial and unjustifiable risk that the circumstances exist or the
        result will occur. The risk must be of such a nature and degree that its disregard
        constitutes a gross deviation from the standard of care that an ordinary person would
        exercise under all the circumstances as viewed from the actor’s standpoint.

        (d) A person acts with criminal negligence, or is criminally negligent, with respect
        to circumstances surrounding his conduct or the result of his conduct when he ought
        to be aware of a substantial and unjustifiable risk that the circumstances exist or the


        6
         Appellant can challenge the sufficiency of the evidence supporting his guilt even if his
testimony at the punishment phase might relate to the elements of the offense. See Jacobson v. State,
398 S.W.3d 195, 202 (Tex. Crim. App. 2013).

                                                  12
        result will occur. The risk must be of such a nature and degree that the failure to
        perceive it constitutes a gross deviation from the standard of care that an ordinary
        person would exercise under all the circumstances as viewed from the actor’s
        standpoint.


Tex. Penal Code § 6.03. The court instructed the jury that a person commits murder when he

intentionally or knowingly causes the death of another and that, if the murderer knows that the victim

is under six years old, the offense is capital murder. See id. § 19.02(b)(1), .03(a)(8). The court also

instructed the jury that a person commits the offense of injury to a child when he intentionally or

knowingly causes serious bodily injury to a child aged fourteen years or younger. See id. § 22.04.

                When reviewing the sufficiency of the evidence supporting a conviction, we consider

all of the evidence in the light most favorable to the verdict to decide whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.

App. 2013). Circumstantial evidence is as probative as direct evidence in establishing a defendant’s

guilt, and a defendant’s guilt can be established with circumstantial evidence alone. Temple,

390 S.W.3d at 359. Intent may be inferred from circumstantial evidence such as acts, words, and

the conduct of the defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). In

circumstantial-evidence cases, every fact need not point directly and independently to the guilt of

the defendant; it is enough if the conclusion is warranted by the combined and cumulative force of

all the incriminating circumstances. Id. at 49. The jury is the sole judge of the credibility and weight

to be attached to the testimony of witnesses. Jackson, 443 U.S. at 319. When the record supports

conflicting inferences, we presume the jury resolved the conflicts in favor of the verdict and defer

to that determination. Temple, 390 S.W.3d at 360 (citing Jackson, 443 U.S. at 326).


                                                  13
                Appellant cites the police officers’ admission that, despite intense questioning, he

never said that he intentionally killed the child. He contends that he was only reckless or criminally

negligent when he held the child too tightly—levels of culpability that do not satisfy the murder

or capital murder charges given in this case. See Tex. Penal Code §§ 19.02(b)(1), .03(8). When

squarely presented with the choice of culpability levels, however, the jury determined otherwise.

                There was evidence that appellant favored a more physically aggressive method of

quieting the child. Veronica testified that she and appellant had an ongoing disagreement over

how to handle the child when she cried. Veronica said she preferred to comfort the crying child,

but appellant advocated ignoring the child. Veronica testified about an incident in a car when

appellant tried to place his hand over the child’s mouth to stop her crying. Veronica said that she

grabbed appellant’s hand to discourage him from touching the child but, when they arrived at their

destination, appellant got out of the car, blocked Veronica from the backseat, yelled at the child, and

covered her mouth with his hand.

                The record also contained evidence that appellant’s relationship with the child

was deteriorating. There was testimony that appellant and the child had bonded early on, but that

the child eventually seemed not to want to be around appellant. Veronica and Detective Scanlon

testified that appellant described the child as spoiled and jealous of him. Veronica also testified that

appellant had been angry at her and the child that morning for interrupting his sleep. Nevertheless,

when appellant took Veronica to her job interview, appellant abruptly changed the childcare plan to

keep the child by himself for the first time. What happened next is, as discussed above, the subject

of many different stories by appellant. In one of these variations, appellant told Detective Nelson

that he held the baby too tight, that she stopped breathing in his arms, and that she died in his arms.


                                                  14
               The medical evidence supported a finding that the child suffocated. The examiner

found that the child’s brain was deprived of oxygen, which led to her death. Although the physicians

could not say what caused the child to suffocate, Dr. Higgerson testified that she would not

expect a developmentally appropriate seven-month-old—and the only evidence is that this

child was progressing at least normally—to suffocate accidentally absent unusual circumstances.

Dr. Higgerson also testified that she would expect a seven-month-old child to resist being suffocated.

Although Dr. Higgerson said she did not find any bruises on the child, the medical examiner Dr.

Chundru reported bruising on the child’s sides consistent with being squeezed by someone who

pressed their thumbs in. Dr. Edwards testified that irreversible brain damage can occur after two

minutes without oxygen.

               Appellant told police that he loved the child and did not intend to hurt her. He at

times insisted that the child was still breathing when he left her and gave alternate theories on how

the child might have died other than by his hand. The jury heard all of the testimony and, as the sole

judge of credibility, found his denials not credible. Jackson, 443 U.S. at 319.

               Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational jury could have found that appellant intentionally or knowingly injured and killed the child.


Conviction for murder in addition to the punishment for capital murder of the same child
violates double-jeopardy prohibition.

               Appellant complains that the trial court violated the constitutional prohibition of

double jeopardy because it assessed punishments for capital murder and for the lesser-included

offense of murder based on the same actions against the same child. See U.S. Const. amend. V;




                                                 15
Tex. Const. art. I, § 14. The State agrees that, if we determine that murder is a lesser-included

offense of capital murder, we should vacate the conviction for the lesser offense.

               We conclude that, as charged, murder is a lesser-included offense of capital murder.

See Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999) (felony murder); see also

Tex. Penal Code §§ 19.02, .03. The jury assessed a term of life in prison without parole for the

capital murder conviction and a lesser term of sixty years in prison for the murder conviction. We

therefore vacate the judgment of conviction for the lesser-included offense of murder without regard

to the merits or the sufficiency of the supporting evidence. See Bigon v. State, 252 S.W.3d 360, 372-

73 (Tex. Crim. App. 2008). Contrary to appellant’s request that we render judgment of acquittal on

the murder charge, we conclude that we are authorized only to vacate the murder conviction and the

related sentence. See id.


                                         CONCLUSION

               We vacate the conviction and sentence for the lesser-included offense of murder and

affirm the judgment in all other respects.



                                              ___________________________________________

                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Puryear and Goodwin

Affirmed in part; Vacated in part

Filed: March 13, 2015

Do Not Publish



                                                 16
Defendant’s Amended Motion for New Trial, including
Affidavit of Brittany Banda and proposed Order Setting
Hearing on Defendant’s Amended Motion for New Trial,
             filed Nov. 1, 2012 (CR 86-92)
                                 No. D-1-DC-12-904069

THE STATE OF TEXAS                            §               IN THE 403R0 DISTRICT
                                              §
vs.                                           §               COURT OF TRAVIS
                                              §
JOHNNY CASTRO                                 §               COUNTY, TEXAS

               DEFENDANT'S AMENDED MOTION FOR NEW TRIAL

TO THE HONORABLE JUDGE OF THIS COURT:

       NOW COMES the defendant, JOHNNY CASTRO, who files Defendant's

Amended Motion for New Trial, respectfully stating as follows:

                                  Statement of the Case

       Mr. Castro was found guilty by a jury verdict and sentenced by this court on

October 12, 2012. Mr. Castro's appointed trial attorney timely ft.led a notice of appeal

and a motion for new trial. The undersigned attorney was appointed to represent Mr.

Castro on appeal, and is filing this amended motion for new trial on Castro's behalf.

Since Castro was sentenced on October 12, 2012, this motion for new trial must be filed

by Monday, November 12,2012 to be timely under Tex. R. App. P. 4.1(b) and 21.4. Any

hearing on this motion must be conducted within 75 days after the sentencing date, or by

Wednesday, December 26,2012. Tex. R. App. P. 21.8(a). If no ruling is made on the

motion by that date, it is overruled by operation of law. Tex. R. App. P. 21.8 (c).

                      Necessity/Request for an Evidentiary Hearing

       Because this motion raises matters outside the trial record, it is properly verified

by a supporting affidavit, and the motion was timely filed and presented, an evidentiary

hearing is warranted, and it would be an abuse of discretion to deny Mr. Castro such a

hearing. See Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1992), Martinez v.
                                                                        o· strict court
                                                            Fi\ed in ~h~o~ntV Texas
                                                             ofTrav1s          '
                                                                   NOV 0 \ 20\2
                                                                       ,o-.B(o ~
                                                             At__ R dr·,guez.-Mendoza,
                                             as              Amalia o
State, 74 S.W.3d 19,22 (Tex. Crim .. App. 2002) and Hobbs v. State, 298 S.W.3d 198,

199-203 (Tex. Crim. App. 2009). The purpose of the hearing is to fully develop the

issues raised in the new trial motion, Martinez, 74 S.W.3d at 21, as well as to determine

whether the case should be retried or to complete the record for presenting issues on

appeal. Hobbs, 298 S.W.3d at 199. As a prerequisite to obtaining a hearing, the motion

must be supported by affidavit specifically showing the grounds for attack. Reyes, 849

S.W.2d at 816; Martinez, 74 S.W.3d at 21; Hobbs, 298 S.W.3d at 199. The affidavits

need not reflect each and every component legally required to establish relief or present a

prima facie case, but rather must merely reflect that reasonable grounds exist for holding

that a new trial could be granted. Reyes, 849 S.W.2d at 816; Martinez, 74 S.W.3d at 21-

22, Hobbs, 298 S.W.3d at 199-200.

       The affidavit attached to this amended motion presents reasonable grounds that a

new trial could be granted. Accordingly, defendant Johnny Castro respectfully requests a

hearing on this motion prior to December 26, 2012, the 75 1h day after judgment, when

this motion will be overruled by operation oflaw. Tex. R. App. P. 21.8 (a), (c). A

proposed order setting hearing is attached.

                            Grounds for Requesting New Trial

       Tex. R. App. P. 21.3(e) provides in part, "The defendant must be granted a new

trial, or a new trial on punishment, for any of the following reasons: (e) when a material

defense witness has been kept from court by force, threats, or fraud .... "   The affidavit

of Brittany Banda attached to this motion shows that Ms. Banda is a material defense

witness who was kept from testifying at Mr. Castro's trial by force or threats. Ms.

Banda's testimony proffered in the affidavit is material to the question of Mr. Castro's

                                              2




                                              87
             ''   , ,_   _,, ~.   HO""   ~~   · - -· · ·   0   0   ·- ·- ~----------------------,




guilt or innocence, as it provides another explanation for what occurred on the date in

question which differs from testimony presented at trial. The affidavit also states that

Ms. Banda was threatened by others not to testify at trial, thus satisfying Rule 21.3(e).

        A proposed order setting this motion for hearing is attached.

                                                                   Conclusion

        For the foregoing reasons, defendant JOHNNY CASTRO respectfully prays that

this court set this matter for an evidentiary hearing, and set aside the verdict and

judgment herein and grant a new trial.

                                                                                            Respectfully submitted,




                                                                                                 Gregory Sherwood
                                                                                                           Attorney
                                                                                                   PO Box 200613
                                                                                         Austin, Texas 78720-0613
                                                                                                    (512) 219-1677
                                                                                             Texas Bar# 18254600

                                                                                Court-Appointed Attorney on Appeal
                                                                                       for Defendant Johnny Castro

                                              Certificate of Presentment

       I certify that I am counsel for the defendant in thi s case and that I presented this
motion to the trial court pursuant to Tex. R. App. 21.6 by delivering a copy to the court
coordinator for the 403rd District Court on November 1, 2012.




                                                                       3




                                                                       88
                                 Certificate of Service

       I hereby certify that a true copy of this document was served by band delivery
upon the Travis County District Attorney's Office, 509 W. 11 1h Street, Blackwell-
Thunnan Justice Center, 2nd Floor, Austin. Texas 78701, on November 1, 2012.




                                                      /~  ~JLJ         Gregory Sherwood




                                            4




                                            89
                                    No. D-1-DC-12-904069

· THESTATEOFTEXAS                                  §          IN THE 403RD DISTRICT
                                                   §
 vs.                                               §          COURT OF TRAVIS
                                                   §
JOHNNY CASTRO                                      §          COUNTY, TEXAS

                            AFflDAVITOFBRITTANYBANDA

 STATE OF TEXAS                           §
                                          §
 COUNTY OF TRAVIS                         §

         BEFORE ME, the undersigned authority, personally appeared Brittany Banda,

 who being by me duly sworn did state upon her oath the following:

         "My name is Brittany Banda. I am capable of making this affidavit and I have

 personal knowledge of the facts stated herein. I declare under penalty of perjury that the

 facts stated in this affidavit are true and correct.

         On February 28,2011, my mother and I were shopping around getting prepared

 for my daughter to be born. I was 7 going on 8 months at the time. We were driv4'tg & I

 had noticed Johnny's car. So I (Brittany) had told my mom to stop the car please & she

 did. I had gotten out the car & when I had walked up the steps, I heard the baby crying. I

 knocked on the door and Johnny answered, he was holding Melanie in his arms caressing

 her trying to ~alm her down saying "daddy's here its ok baby''. He invited me in. I had

 asked what was wrong with her & he told she had just fallen. So he was rocking &

 caressing her. She fell asleep in his arms after crying so much. I had told him that she

 (Melanie) looked pale as if she was sick. He told me she had been for the past few days,

just Melanie's mom didn't bother taking her to the doctor to get checked. While we were



                                              Page 1 of 2



                                                   90
talking he had told me what had happened that morning with him and Veronica. He

mentioned to me that he wanted to end their relationship for a while, but she had told him

that she would hurt herself & baby Melanie. He didn't want that to happen so he said

that's why he stuck around. He wanted to go lay her down on the bed. So we walked to

the bedroom & he laid her down on the bed. We walked back to the living room &

talked a little bit more. I told him I had to go. He said "ok, let me just go check on my

baby girl". I followed him to the bedroom & we've noticed she was a light blue color.

He panicked and grabbed her & said "baby wake up wake up, it's daddy please baby".

Then he told me to hurry up and leave, so I left in a hurry.

        I would have presented this evidence at Johnny Castro's trial but for the fact that I

was threatened by others, including my child's dad, Jarrod Weaver-Mason, not to

testify."

FURTHE~        AFFIANT SAYETH NOT.




fLD~RIBED TO AND SWORN BEFORE ME by Brittany Banda on                                       3/
"""~..:::::;___;:~~-=;__--'' 2012.




                                                   Notary Public in and for the State of Texas

                                                                      "THOMAS E. TAYLOR
                                                                    MY COMMISSION EXPIRES
                                                                        Mardl15, 2015


                                        Page 2 of 2



                                              91
-
                                      No. D-1-DC- 12-904069

    THE STATE OF TEXAS                             §              IN THE 403R0 DISTRICT
                                                   §
    vs.                                            §              COURT OF TRAVIS
                                                   §
    JOHNNY CASTRO                                  §              COUNTY, TEXAS

                       ORDER SEITING HEARING ON DEFENDANT'S
                          AMENDED MOTION FOR NEW TRIAL

           On this date came on to be considered Defendant's Amended Motion for New

    Trial, which was timely fiJed and presented to this court within ten ( 10) days of filing

    pursuant to Tex. R. App. P. 21.4 and 21.6. The court finds that such motion is timely

    presented and that an evidentiary bearing is warranted.

           IT IS THEREFORE ORDERED that Defendant' s Motion for New Trial be set for

    an evidentiary hearing on the _ _ day of _ __ _ _ _ _ _ , 2012, in the 403rd

    District Court of Travis County, Texas at _ _ __



           Signed this _ _ day of _ _ _ _ __ __ _, 2012.




                                                          Hon. Brenda Kennedy
                                                          District Judge Presiding




                                                  92
 Unsigned Proposed Order Denying Defendant’s Amended
Motion for New Trial Without an Evidentiary Hearing, with
handwritten notations by Defendant’s Appointed Attorney
          on Appeal, filed Nov. 15, 2012 (CR 96)
                                  No. D-1-DC-12-904069

THE STATE OF TEXAS                             §              IN THE 403R0 DISTRICT
                                               §
vs.                                            §              COURT OF TRAVIS
                                               §
JOHNNY CASTRO                                  §              COUNTY, TEXAS

               ORDER DENYING DEFENDANT'S AMENDED
       MOTION FOR NEW TRIAL WITHOUT AN EVIDENTIARY HEARING

       On this date came on to be considered Defendant' s Amended Motion for New

Trial, which was timely filed and presented to this court within ten ( 10) days of filing

pursuant to Tex. R. App. P. 21.4 and 21.6. The Court considered Defendant' s Amended

Motion for New Trial and the Affidavit of Brittany Banda which was attached to the

motion, fmds that such motion is timely presented, but that an evidentiary hearing is not

warranted.

       IT IS THEREFORE ORDERED that no evidentiary hearing will be heard on

Defendant' s Amended Motion for New Trial, and that Defendant's Amended Motion for

New Trial is DENIED.



       Signed this _ _ day of _ _ _ __ _ _ _ _., 2012.




                                                      Hon. Brenda Kennedy
                                                      District Judge Presiding
                                                                      Filed in The District Court
                                                                       of Travi!; County, Texas

                                                                             NOV 15 2012
                                                                       At        (l·. c)(o~        M.
                                                                       Amalia Rodriguez-Mendoza, Clerk
