Opinion filed June 28, 2018




                                         In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-17-00218-CR
                                    __________

                 ARNULFO JOSE CASTILLO, Appellant
                                            V.
                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 32nd District Court
                              Nolan County, Texas
                          Trial Court Cause No. 12057


                      MEMORANDUM OPINION
      The jury found Appellant, Arnulfo Jose Castillo, guilty of the second-degree
felony offense of robbery.1 The jury assessed punishment at confinement for five
years. The trial court sentenced Appellant in accordance with the verdict and also
ordered that Appellant pay court costs and attorney’s fees.




      1
       See TEX. PENAL CODE ANN. § 29.02 (West 2011).
       In a single issue on appeal, Appellant argues that the trial court erred when it
denied his request to provide the jury with instructions on the lesser included
offenses of misdemeanor theft and misdemeanor assault. We affirm.
                                       I. Evidence at Trial
       On the day of the offense, Appellant, a woman, and a child went to a Walmart
in Sweetwater. Benjamin Alexander, who was employed by Walmart as an “asset
protection associate” at the time, saw Appellant and the woman grab multiple items
from the laundry detergent aisle, specifically “Tide Pod packs” and “dryer bead[s].”
Alexander then followed them through the store.
       In another part of the store, Alexander saw Appellant place some of the items
into the pockets of his pants and “big jacket,” and he saw the woman place some of
the items in her “big purse.”
       Appellant, along with the woman and the child, walked toward the garden
center exit. The outdoor area of the garden center is enclosed by a metal fence and
contains a gate that leads to the parking lot. Walmart considers the gate the “last
point of sale” for the garden center. Alexander testified that “any shoplifter has to
bypass the last point-of-sale [for Walmart] to consider it as a theft.” Appellant and
the woman, along with the child, walked out the gate without paying for the
concealed merchandise.
       As Appellant, the woman, and the child moved just outside the gate,
Alexander approached them. Alexander positioned himself in front of the woman
and attempted to use his body “to push her back into the store.” Appellant “had
already walked really far out” into the parking lot, so Alexander “hollered” at
Appellant to come back. Appellant ran toward his vehicle.2 But, as Alexander was
pulling the woman back into the gate, Appellant returned.

       2
         Alexander believed that Appellant “might have” placed some of the stolen items in his vehicle,
but he could not tell if Appellant entered his vehicle or not.
                                                  2
        According to Alexander, Appellant tried to attack him and “started trying to
rip my arm away from the other lady and started swinging his arms at me.”
Appellant then grabbed the child and left the Walmart property. The woman was
apprehended, and Appellant never came back. The police found stolen merchandise
in Appellant’s vehicle and on the ground where the struggle ensued between
Alexander and Appellant.
                                              II. Analysis
        In a single issue, Appellant claims the trial court erred when it denied his
request that the trial court instruct the jury on the lesser included offenses of
misdemeanor theft and misdemeanor assault.3 We apply a two-step analysis to
determine whether a defendant is entitled to a lesser included offense in the jury
charge. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005). First, we
“determine whether the lesser offense actually is a lesser-included offense of the
offense charged as defined by article 37.09” of the Texas Code of Criminal
Procedure. Id. Second, we determine “whether the record contains some evidence
that would permit a rational jury to find that the defendant is guilty only of the lesser-
included offense.” Id.

            A. Theft and assault are lesser included offenses of robbery, as
               charged in the indictment.
        Appellant claims, and the State agrees, that theft and assault are lesser
included offenses of robbery, as charged in the indictment. We apply the “cognate-
pleading” approach to determine whether an offense is a lesser included offense of
the offense charged. Ex parte Castillo, 469 S.W.3d 165, 169 (Tex. Crim. App.
2015) (citing Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007)); see


        3
         The record reflects that the value of the merchandise taken by Appellant from Walmart was within
the range of a misdemeanor theft, see PENAL § 31.03(e) (West Supp. 2017), and that the assault by Appellant
upon Alexander would constitute a misdemeanor assault, see id. § 22.01(a)(1), (b).
                                                    3
Knott v. State, 513 S.W.3d 779, 791 (Tex. App.—El Paso 2017, pet. ref’d). We must
compare the pleaded elements of the greater offense to the statutory elements of the
potential lesser-included offense. Ex parte Castillo, 469 S.W.3d at 169. We review
the legal question in the abstract, and our review does not depend on the evidence
offered at trial. See id. In this case, the grand jury returned an indictment that alleged
that Appellant “did then and there, while in the course of committing theft of
property and with intent to obtain or maintain control of said property, intentionally,
knowingly, or recklessly cause bodily injury to Benjamin Alexander by pulling on
Benjamin Alexander’s arm and swinging his fists at him.”
      When an indictment for robbery alleges the statutory element “in the course
of committing theft”—as is present in this case—“[t]heft, by whatever method
committed, is necessarily included in the alleged elements of the greater offense of
robbery.” Earls v. State, 707 S.W.2d 82, 84–85 (Tex. Crim. App. 1986); see
PENAL § 31.03 (defining “theft”). Therefore, theft is a lesser included offense of
robbery in this case because the indictment alleged the statutory element of “in the
course of committing theft.” See TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West
2006) (an offense is a lesser included offense if “it is established by proof of the
same or less than all the facts required to establish the commission of the offense
charged”).
      For the offense of assault, assault is a lesser included offense of robbery if the
defendant is charged by indictment with intentionally, knowingly, or recklessly
causing “bodily injury to another.” Martinez v. State, 599 S.W.2d 622, 624 (Tex.
Crim. App. [Panel Op.] 1980) (“[A]n allegation of robbery by causing bodily injury
would include the lesser offense of assault by causing bodily injury . . . .”); see
PENAL § 22.01 (defining “assault”). Assault is a lesser included offense of robbery
in this case because the indictment alleged that Appellant “intentionally, knowingly,
or recklessly caused bodily injury.” See CRIM. PROC. art. 37.09(1).
                                            4
         B. Appellant failed to produce evidence that the misdemeanor theft
            and misdemeanor assault were separate events.
      To be entitled to a lesser included instruction for misdemeanor theft and
assault, “some evidence directly germane” to those lesser included offenses must
have been presented; “[i]t is not enough that the jury may disbelieve crucial evidence
pertaining to the greater offense” of robbery. Skinner v. State, 956 S.W.2d 532, 543
(Tex. Crim. App. 1997). Appellant must point to evidence that “negates the
aggravating element of the greater offense” of robbery, or Appellant could show that
the evidence pertaining to the “aggravating element is so weak that a rational jury
might interpret in such a way as to give it no probative value.” Robertson v. State,
871 S.W.2d 701, 706 (Tex. Crim. App. 1993).
      “Anything more than a scintilla of evidence is sufficient to entitle a defendant
to a lesser charge.” Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).
This court does “not consider whether the evidence is credible, controverted, or in
conflict with other evidence.” Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). Appellant attempts to negate the robbery element of “in the course of
committing theft” to show he was entitled to lesser included instructions for both
misdemeanor theft and misdemeanor assault. Appellant suggests that the theft and
the assault were separate events and that there is more than a scintilla of evidence
that Appellant was no longer in the “course of committing a theft” when he assaulted
Alexander.    Appellant asserts that, because he ran to his car with the stolen
merchandise after his female accomplice was detained, disposed of the stolen
merchandise, and then came back and committed the assault, Appellant had
successfully escaped. He argues that the theft was completed and that he was no
longer “in the course of committing a theft” when he assaulted Alexander. See
Sweed v. State, 351 S.W.3d 63, 69 (Tex. Crim. App. 2011) (if State could not prove
“in the course of committing theft,” then the theft and assault were separate events).

                                          5
      We note that, under the current robbery statute, the legislature “assigned a
broad meaning to the term, ‘in the course of committing theft,’ to encompass
virtually any act occurring immediately before, during, or after a theft.” Knott, 513
S.W.3d at 793 (citing Sorrells v. State, 343 S.W.3d 152, 157–58 (Tex. Crim. App.
2011)). “In the course of committing theft” is defined under the Penal Code as
“conduct that occurs in an attempt to commit, during the commission, or in
immediate flight after the attempt or commission of theft.” PENAL § 29.01(1). The
term “immediate flight” is not defined in the Penal Code, but the term “immediate”
can be defined as “[o]ccurring without delay; instant,” “[n]ot separated by other
persons or things,” or “[h]aving a direct impact; without an intervening agency.”
Sweed, 351 S.W.3d at 69 n.5 (quoting BLACK’S LAW DICTIONARY 751 (7th ed.
1999)); see Thomas v. State, 708 S.W.2d 580, 581 (Tex. App.—Eastland 1986, pet.
ref’d) (providing an alternate definition of “immediate”).
      In this case, the jury could have concluded that Appellant caused bodily injury
to Alexander in immediate flight after the commission of the theft. See Ulloa v.
State, 570 S.W.2d 954, 957–58 (Tex. Crim. App. 1978). Approximately one minute
transpired from the point that Appellant passed the “last point of sale” with the stolen
items to when Appellant came back and swung his arms at Alexander. The close
proximity of the theft and the assault supports a conclusion that the assault occurred
“immediately” and “without delay” after the theft. See Thomas, 708 S.W.2d at 581
(concluding appellant was in immediate flight after an attempted theft when “it was
established that appellant was observed committing theft, was detained for the
arrival of police, and assaulted a security guard in an effort to escape, all within a
time frame of 13 to 20 minutes”).
      Moreover, although Appellant returned to his vehicle to place all or some of
the stolen items there, this is not an intervening circumstance that would break the
chain of events between the theft and the assault. See Oggletree v State, 851 S.W.2d
                                           6
367, 369–70 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (defendant’s act of
fleeing from the parking lot did not constitute an intervening circumstance that broke
the chain of events between the attempted theft and assault). Appellant did not
successfully escape from Walmart after the theft; rather, he remained in the vicinity
of the Walmart store and immediately returned and assaulted Alexander. See id.
(defendant was in immediate flight when he fled after the attempted theft and then
returned and assaulted the person who was detaining his accomplice). No reasonable
juror could have concluded that there was a break in the chain of events and that the
theft and the assault were separate events—unlike the facts in Sweed. See Sweed,
351 S.W.3d at 65, 69 (fifteen- to thirty-minute delay between the theft and the assault
and intervening circumstances, such as entering and exiting an apartment near the
theft, warranted a lesser included instruction for theft in a robbery appeal).
      Appellant nevertheless argues that he has produced affirmative evidence to
show that there was a break in the chain of events between the theft and the assault.
Appellant claims that Alexander testified that Appellant “was no longer in
immediate flight from the theft when [Appellant] pulled on his arm and swung at
him with his fist.” We disagree with Appellant’s characterization of Alexander’s
testimony. Alexander was asked at trial whether Appellant was in immediate flight
from the theft, and Alexander testified: “I would say he was running because I
attempted to contact him stating I was asset protection, and I needed to talk to him
about the items that he had on him.” Alexander was then asked whether Appellant
had gotten away from the store and placed the items in the car before the alleged
assault occurred, and Alexander replied: “Yes, or he might have” because “he might
have still had some of [the items] on him.”
      Several questions later, Alexander explained that, after Appellant ran toward
his vehicle, Alexander left it up to his assistant to chase after Appellant and that
Alexander did not expect Appellant to return. We disagree that this testimony
                                           7
constitutes affirmative evidence that negates the aggravating element of robbery “in
the course of committing theft.” Even if Alexander’s testimony was believed by a
jury, the jury could not conclude that the theft and assault were separate events and
that Appellant was, therefore, not in the course of committing theft when he
assaulted Alexander.
      Appellant also points to the testimony of Kevin Webb, an asset protection
manager at Walmart, to show that Appellant had successfully completed a theft,
escaped from the scene of the crime, and broke the chain of events in the criminal
episode. Appellant claims that Webb’s testimony showed that “there was no pursuit
of [Appellant] after [Appellant] was in the parking lot fleeing toward his car.” We
note that Webb only testified that Appellant fled the scene. While it is true that no
Walmart employee pursued Appellant to his vehicle, Appellant chose to remain in
the vicinity of the store and, as we explained above, he did not escape. The lack of
pursuit to Appellant’s vehicle does not break the chain of events in the criminal
episode. See Oggletree, 851 S.W.2d at 368–70 (thief successfully evaded store
employee by fleeing the parking lot but was still considered to be in immediate flight
when he returned to aid his accomplice).
      The record reflects that the assaultive act occurred immediately after the theft
with no significant break in the chain of events. The trial court did not err when it
refused to submit a charge on the lesser included offenses of theft and assault
because there was no evidence that Appellant, if guilty, was only guilty of the lesser
included offenses of misdemeanor theft and misdemeanor assault. See Royster v.
State, 622 S.W.2d 442, 446–47 (Tex. Crim. App. 1981) (defendant was not entitled
to a charge on the lesser included offenses of theft and assault in conviction for
robbery). Accordingly, we overrule Appellant’s sole issue.




                                           8
                                       III. This Court’s Ruling
        We affirm the judgment of the trial court.




                                                           MIKE WILLSON
                                                           JUSTICE


June 28, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.4




        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      9
