                                                                                  PD-0545-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                                Transmitted 6/18/2015 4:59:56 PM
June 19, 2015
                                                                  Accepted 6/19/2015 8:56:49 AM
                                                                                  ABEL ACOSTA
                               NO. PD-00545-14                                            CLERK

                           IN THE TEXAS COURT
                          OF CRIMINAL APPEALS


                              EX PARTE
                       THOMAS EDWARD CASTILLO

                          From The Court of Appeals
                For The Fourth Court of Appeals District of Texas
                             No. 04-13-00615-CR
                 And The 227th District Court of Bexar County
                              No. 2010-CR-11317


                 APPELLANT’S MOTION FOR REHEARING




                                     MARK STEVENS
                                     310 S. St. Mary's Street
                                     Tower Life Building, Suite 1920
                                     San Antonio, Texas 78205
                                     (210) 226-1433
                                     State Bar No. 19184200
                                     mark@markstevenslaw.com

                                     MARIO DEL PRADO
                                     222 Main Plaza
                                     San Antonio, Texas 78205
                                     (210) 698-3533 office
                                     (210) 698-3701 fax
                                     State Bar No. 05653600
                                     mario@delpradolaw.com

                                     Attorneys for Appellant
                                        TABLE OF CONTENTS

I.       These two offenses are factually the same . . . . . . . . . . . . . . . . . . . . . . . . 1

         A.       State action has made it impossible to identify the “victims.” . . 2

                  1.       The vaguely worded capital murder indictment is, at best,
                           inconclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

                  2.       The state refused to clarify its vague indictment . . . . . . . . 5

                  3.       The state opposed consolidation . . . . . . . . . . . . . . . . . . . . . . 7

                  4.       The state chose to focus this capital case on the alleged
                           assault against Sanchez, over Mr. Castillo’s objections that
                           this was irrelevant extraneous misconduct . . . . . . . . . . . . . 8

                  5.       Both prosecutors chose to argue that Ms. Sanchez was the
                           victim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

         B.       Having strategically avoided every opportunity to make it
                  perfectly clear that its case had only one victim, the state may not
                  now profit from any resulting uncertainty . . . . . . . . . . . . . . . . . . 11

II.      If A is a lesser of B, and B is a lesser of C, then A is a lesser of C . . . . 13

III.     This Court did not consider Ex parte Nielsen . . . . . . . . . . . . . . . . . . . . 14

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF COMPLIANCE) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18




                                                           i
                                        INDEX OF AUTHORITIES

          Cases                                                                                                   Pages

Brown v. Ohio, 432 U.S. 166
     (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ex parte Castillo, 432 S.W. 3d 467
      (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,13

Ex parte Chaddock, 369 S.W. 3d 880
      (Tex. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ex parte Goodbread, 967 S.W. 2d 859
      (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12

Ex parte Nielson , 131 U.S. 176
         (1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15,16

Ex parte Pruitt, 233 S.W. 3d 338
      (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,12

Garfias v. State, 424 S.W. 3d 54
      (Tex. Crim. App. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Harris v. Oklahoma, 433 U.S. 682
      (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

In re Nielsen, 131 U.S. 176
       (1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

King v. State, 594 S.W. 2d 425
       (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,6

Littrell v. State, 271 S.W. 3d 273
        (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Moore v. State, 969 S.W. 2d 4
     (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                                                            ii
Pinkerton v. State, 660 S.W. 2d 58
      (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Silguero v. State, 608 S.W. 2d 619
       (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

State v. Meru, 414 S.W. 3d 159
       (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Stephens v. State, 806 S.W. 2d 812
      (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Terry v. State, 471 S.W.2d 848
       (Tex. Crim. App. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Rules:

TEX. R. APP. PROC.79.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. PROC. 9.4(i)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX. R. EVID. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. R. EVID. 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. R. Evid. 403        ..................................................... 8

TEX. R. EVID. 404 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Statutes:

TEX. CODE CRIM. PROC. Art. 21.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7

TEX. CODE CRIM. PROC. Art. 21.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

      Constitutions:
U.S. CONST., Amend V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
U.S. CONST., Amend XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


                                                             iii
TO THE HONORABLE JUDGES OF THE TEXAS COURT OF CRIMINAL
APPEALS:

      Thomas Castillo moves that rehearing be granted and, as required by TEX. R.

APP. PROC. 79.1, he briefly and distinctly states the grounds and arguments relied on

to support this motion.

                                          I.
                               These two offenses are
                                 factually the same

      This Court correctly held that Thomas Castillo may not be prosecuted for

burglary, “because the burglary allegation is legally and factually the same as the

capital-murder charge for which he was previously acquitted.”1 The Court also

correctly held that the capital murder alleged in the one indictment is “legally the

same” as the aggravated assault alleged in the other.2 The Court erred, however,

when it held that these two offenses are not factually the same because they “allege

two different units of prosecution,” and that Mr. Castillo was not in jeopardy of

being convicted of aggravated assault in the capital murder trial.3




       1
              Ex parte Castillo, 2015 WL 3486960 *4 (Tex. Crim. App. 2015).
       2
              Id(emphasis supplied).
       3
              Id. at *5(emphasis supplied).

                                           1
A.    State action has made it impossible to identify the “victims.”

      Central to this Court’s holding that the capital murder and the aggravated

assault offenses were not factually the same was its conclusion that the victims were

necessarily different:

      When the victims alleged in the capital-murder and aggravated- assault
      charges are compared, we conclude that they allege two different units
      of prosecution: Nava and Sanchez.

      Furthermore, Appellant was not in jeopardy of being convicted for
      committing aggravated assault against Sanchez during his
      capital-murder trial because the State did not have to prove that
      Appellant committed aggravated assault against Sanchez to establish
      capital murder. There was no set of facts that the jury could have
      believed that required it to return a guilty verdict based on a belief that
      Appellant committed aggravated assault against Sanchez. That is, if
      the jury convicted Appellant of capital murder, it must have also
      believed that Appellant committed aggravated assault against Nava.4

      Contrary to what this Court held, it is impossible to know if the jury

considered Mr. Nava or Ms. Sanchez when it was deciding whether Mr. Castillo

was in fact guilty of aggravated assault against that person, then of burglarizing the

Nava home, and then, finally, of capital murder of Mr. Nava. This Court erred when

it held that “[t]here was no set of facts that the jury could have believed that

required it to return a guilty verdict based on a belief that Appellant committed

aggravated assault against Sanchez.” Rather, from the totality of circumstances

       4
              Id(emphasis supplied).

                                           2
surrounding the trial, a reasonable jury might well have believed that Mr. Castillo

committed aggravated assault against his wife, and might have then used this

finding to convict him of capital murder. Because of this, the two offenses – capital

murder and aggravated assault – were legally, factually, and constitutionally the

same, and a successive trial is barred by the Double Jeopardy Clause of the Fifth

and Fourteenth Amendments to the United States Constitution.

1.    The vaguely worded capital murder indictment is, at best, inconclusive.

      The aggravated assault count alleges a single offense against one person —

Carol Sanchez. As alleged in that count, Sanchez is clearly the only victim; there is

no possibility of confusion, given the wording of the indictment, and the crime

alleged — aggravated assault.

      The capital murder indictment, though, is different. Mr. Nava is certainly

identified as one victim, namely, the person alleged to have been murdered, and the

one who owned the habitation that was burglarized. It is not clear from the

indictment that he was the only victim, however. Because it is a compound crime, a

single capital murder can have multiple victims. King v. State, proves this. King

was charged with capital murder in the course of kidnapping, aggravated rape, and

robbery, but the indictment named only the victim of the murder. The trial court

erred when it denied King’s motion to quash that indictment because it did not also

                                          3
allege the “name of the aggravated rape victim” since that was both a fact critical to

King’s preparation and “was required to precisely distinguish the conduct alleged

from other conduct by the accused, and thereby insure a bar to a subsequent

prosecution for the same offense.”5

      Mr. Castillo’s indictment suffered from the same lack of precision, and, for

the same reason, it also failed its constitutional and statutory duty to insure against

subsequent prosecution for the same offense. The court’s charge clearly

demonstrates the problem: It authorized Mr. Castillo’s conviction for capital

murder upon a finding that he had entered a habitation and committed “aggravated

assault.” But aggravated assault was the only predicate offense to burglary that

was submitted in the court’s charge, and it was defined as using or exhibiting a

deadly weapon to “cause[ ] bodily injury to another.”6 Was “another,” Mr. Nava, or

Ms. Sanchez? The charge, of course, was based on the indictment, and because the

indictment failed to identify the victim of the alleged assault, so did the charge,

hence the indefinite, “another.” That is, because of the vagueness of the state’s

indictment, it is impossible to know who the jury might have considered as the


       5
              594 S.W.2d 425, 427 (Tex. Crim. App. 1980)(emphasis supplied).
       6
             A certified copy of the court’s charge to the jury was introduced at the
writ hearing as Defendant’s Exhibit H. The definition of “aggravated assault” is
on page 2 of that exhibit.

                                           4
putative assault victim when deliberating Mr. Castillo’s guilt of capital murder.

Contrary to what this Court found, then, it is not true that “if the jury convicted

Appellant of capital murder, it must have also believed that Appellant committed

aggravated assault against Nava.”7 According to the plain wording of the charge,

and the evidence at trial, the jury could also have convicted if it believed, among

other things, that Mr. Castillo committed aggravated assault against Sanchez. That

is why the two offenses are factually the same and why a successive prosecution for

aggravated assault now, after the acquittal for capital murder, is barred by the

Double Jeopardy Clause.

2.    The state refused to clarify its vague indictment.

      Defendant’s Motion To Set Aside The Indictment Number One asserted,

among other things, that the capital murder indictment should be set aside because it

failed to allege “the particular type of burglary, the specific acts defendant allegedly

committed, or the constituent elements of burglary.”8 At the hearing, the defense

argued that the indictment should have to “specify the particular type of burglary”

charged.9 The court asked the prosecutor if she objected, she did, and the motion


       7
              Id(emphasis supplied).
       8
              [Defendant’s Exibit C]
       9
              [RR.I–5]

                                           5
was overruled.10

      Our motion cited article 21.04 of the Texas Code of Criminal Procedure

which mandates that indictments be certain enough “as will enable the accused to

plead the judgment that may be given upon it in bar of any prosecution for the same

offense.11 Although it is generally true that a capital indictment need not allege the

constituent elements of the predicate offense, King and similar cases require

precision when the indictment “is susceptible of an interpretation that the victim

was a person other than the named deceased.”12 Certainly the indictment in our

case, where the state offered proof that two different people suffered assaultive

conduct, was susceptible of the same interpretations as in King.

      In State v. Meru, the question was whether criminal trespass was a lesser

included offense of the burglary the defendant had been indicted for. This Court



       10
             [RR.I–14]
       11
             TEX. CODE CRIM. PROC. art. 21.04; see also Terry v. State, 471
S.W.2d 848, 851 (Tex. Crim. App. 1971); see also TEX. CODE CRIM. PROC. art.
21.11 (indictment must be sufficient to “enable the court, on conviction, to
pronounce the proper judgment”).
       12
             Pinkerton v. State, 660 S.W.2d 58, 63 (Tex. Crim. App. 1983)(no
error where indictment for capital murder during the course of burglary was not
“susceptible of an interpretation that the intended victim of the intended rape was
anyone other than the deceased”); see also Silguero v. State, 608 S.W.2d 619, 620
(Tex. Crim. App. 1980).

                                          6
held it was not because the elements of the lesser could not reasonably be deduced

from the greater indictment.13 That said, the Court made it clear the defendant

would not be without remedy:

       However, a defendant who committed a full-body entry and wants the
       opportunity for an instruction on criminal trespass can file a motion to
       quash the indictment for lack of particularity. This would force the
       State to re-file the indictment, specifying the type of entry it alleges the
       defendant committed and allow either party to later request an
       instruction on criminal trespass.14

      That, of course, is precisely what Mr. Castillo attempted to do with his motion

to set aside. In our case, though, because the state objected, and the trial court

acceded, no one was “force[d] . . . to refile the indictment” specifying the name of

the complainant. Having resisted the opportunity to clarify more precisely what kind

of burglary and assault it intended to prove, the state in this Court invoked its vague

pleading as justification for trying Mr. Castillo again. But the state should not be

rewarded for imprecision, especially in light of the express mandate of article 21.04,

and the cases that interpret it.

3.    The state opposed consolidation.

      Before trial began, Mr. Castillo moved to consolidate trial on the two



        13
               414 S.W.3d 159, 164 (Tex. Crim. App. 2013).
        14
               Id. at 164 n. 3.

                                            7
indictments, contending that consolidation made "perfect sense;" that all

transactions allegedly occurred at the same time; that they were "inextricably

intertwined;" that much if not all the evidence would be duplicative; that

consolidation would promote judicial economy; and that it was required by Due

Process and Due Course of Law. The state opposed consolidation and the court

refused to order it. Counsel’s warning that a subsequent trial might pose a jeopardy

problem failed to change the ruling.15

4.    The state chose to focus this capital case on the alleged assault against
      Sanchez, over Mr. Castillo’s objections that this was irrelevant
      extraneous misconduct.

      Before trial began, Mr. Castillo objected extensively to proof regarding the

alleged assault on Ms. Sanchez as extraneous misconduct, inadmissible under Texas

Rules of Evidence 401, 402, 403, and 404(b).16 The state insisted on its right to

present that evidence because the different allegations were "the same criminal

transaction."17

      Ms. Sanchez was the state’s first and principal witness in the capital murder



        15
                  [Defendant's Exhibit D, II–18-20]
        16
            [Defendant’s Exhibit E][Defendant's Objections to Evidence Pursuant
 To Rule 103(a)(1)].
        17
                  [Defendant's Exhibit D, III--7-8]

                                              8
case, and she testified that Mr. Castillo punched her several times, stabbed her 11

times with multiple knives, fractured her arm, bit her finger and blackened her eye,

and that she spent a week in the hospital where she received a colonoscopy.18 The

state also called a deputy who arrived on the scene and testified about the blood from

Ms. Sanchez’s injuries, and a paramedic who testified to the number and type of stab

wounds she had, and the treatment he provided her.19 Twenty photographs of her

injuries, taken some four days after the incident, were introduced into evidence.20

The state offered, and the court admitted, seventy-six pages of medical records from

Brooke Army Medical Center concerning Ms. Sanchez’s treatment.21

      Plainly the state strategically chose to make the capital prosecution as much –

if not more – about Sanchez than Nava. In light of this evidentiary emphasis, it is

reasonable that the jury that was tasked with determining capital murder likely did

consider whether Carol Sanchez was the victim of aggravated assault. This Court




        18
              [Defendant's Exhibit D, III–89-95]
        19
              [Defendant's Exhibit D, IV–30-31]
        20
               [Defendant's Exhibit D, IV–90] Those photographs were introduced
 as state’s exhibits 97 - 116, and can be found in Volume Seven of Defendant’s
 Exhibit D.
        21
              [Defendant’s Exhibit D, V–73]; State’s Exhibit 236.

                                           9
erred when it found otherwise.22

5.    Both prosecutors chose to argue that Ms. Sanchez was the victim.

      As noted, aggravated assault was the only felony identified in the court’s

charge as a predicate to the underlying burglary. The jury heard evidence that Mr.

Nava was murdered, and that Ms. Sanchez was assaulted. So who did the jury most

likely look to as the alleged assault victim? Both prosecutors argued their case in

such a way as to suggest that their assault victim was Carol Sanchez.

      Prosecutor Spiegel made this point in her summation: "If you enter

somebody's house with the intent to attack them with a deadly weapon, to harm

someone inside the house, that's still a burglary even though it doesn't involve theft,

so I hope that's clear to everybody."23

      Prosecutor Molina was more explicit: "well, you can't kill the new boyfriend

and you can't assault your estranged wife with a knife. You just can't do that. The


        22
              The state’s argument that an appellate court may not consider trial
 evidence when determining a jeopardy challenge is clearly erroneous. See e.g.,
 Garfias v. State, 424 S.W. 3d 54-56 (Tex. Crim. App. 2014)(this Court expressly
 relied on facts to decide jeopardy issue); Ex parte Pruitt, 233 S.W. 3d 338, 339-45
 (Tex. Crim. App. 2007)(same); Ex parte Goodbread, 967 S.W. 2d 859, 860-61
 (Tex. Crim. App. 1998)(same). Indeed, as Judge Cochran observed in her
 concurring opinion in Garfias: “. Here, it all depends on the trial record which,
 according to the State's theory at trial and on appeal, shows two separate and distinct
 incidents . . . .”)(emphasis supplied).
        23
               [Defendant's Exhibit D, VI--25][emphasis supplied]

                                            10
law says you can't. And there is no question. There was no question. There is no

question for Carol about what happened that night, and there is no question for Roy

about what happened last night -- that night, because what happened was capital

murder, and it is for the worst of the worst, because that's what happened and that's

what he did, and that is why we believe that there is no question and that you will

find Thomas Castillo guilty of capital murder."24

B.    Having strategically avoided every opportunity to make it perfectly clear
      that its case had only one victim, the state may not now profit from any
      resulting uncertainty.

      As shown, when the entire record is examined, it is more likely that, when the

jury was deciding whether Mr. Castillo committed the capital murder of Mr. Nava, it

necessarily considered whether he had committed the aggravated assault of Ms.

Sanchez. Therefore, contrary to what this Court held, these two offenses are both

legally and factually the same, and double jeopardy bars prosecution of the latter

after an acquittal of the former.

      But even if it could be said that there is now some uncertainty about which of

the two persons the jury more likely viewed as the victim of aggravated assault, that

uncertainty must be laid entirely at the feet of the state. The state chose not to

specify the victims in the indictment, then refused an invitation to clarify the

        24
               [Defendant's Exhibit D, VI--60-61][emphasis supplied]

                                           11
indictment when confronted with a motion to set aside. The state declined an offer

to consolidate the two indictments, which would have avoided the very double

jeopardy challenge to successive prosecutions that we now assert. When the defense

objected that evidence about Sanchez was extraneous, the prosecutors disagreed,

then responded by focusing more on her assault than the murder of Mr. Nava. And,

after the jury had been instructed it could find the underlying burglary if it believed

“another” unnamed person had been assaulted, the prosecutors argued in such a way

as to suggest that this person could be Ms. Sanchez. Having stubbornly insisted on

trying its case in a way that obscured the identity of its victim, undoubtedly for some

perceived strategic advantage, the state should not now be permitted to claim that

Nava was the only victim here, thereby avoiding the preclusive effect of double

jeopardy.25 Rehearing should be granted because, contrary to this Court’s holding,

aggravated assault and capital murder are factually the same.




        25
              Cf. Ex parte Goodbread, 967 S.W. 2d 859, 860 (Tex. Crim. App.
 1998)(“if evidence of more than one offense is admitted and a conviction for
 either could be had under the indictment, and neither the State nor the court elects,
 a plea of former conviction [or acquittal] is good upon a prosecution based upon
 one of said offenses, it being uncertain for which one the conviction [or acquittal]
 was had”)(emphasis supplied)(quoted in Ex parte Pruitt, 233 S.W.3d 338, 347
 (Tex. Crim. App. 2007)).

                                           12
                                           II.
                     If A is a lesser of B, and B is a lesser of C,
                                 then A is a lesser of C

      This Court correctly held that the burglary charge is a lesser included offense

of the capital murder of which Mr. Castillo was acquitted.26 The aggravated assault

against Ms. Sanchez that is alleged in the first count of the indictment is a lesser

included offense of the burglary that is alleged in the second count, since that very

aggravated assault is expressly alleged as a predicate of the burglary.27 Since the

burglary alleged in the second count is a lesser included offense of the capital

murder, and the aggravated assault is a lesser included offense of the burglary, the

aggravated assault is also a lesser included offense of the capital murder.28 These


        26
               Ex parte Castillo, 2015 WL 3486960 at *3.
        27
              Ex parte Chaddock, 369 S.W.3d 880, 886 (Tex. Crim. App.
 2012)(prior prosecution for a greater offense would prevent the state from later
 prosecuting a lesser-included predicate offense); see also Harris v. Oklahoma, 433
 U.S. 682, 682 (1977)("When, as here, conviction of a greater crime, murder,
 cannot be had without conviction of the lesser crime, robbery with firearms, the
 Double Jeopardy Clause bars prosecution for the lesser crime after conviction of
 the greater one.").
        28
              Cf. Littrell v. State, 271 S.W.3d 273, 277 n.18 (Tex. Crim. App.
 2008)(because attempted aggravated robbery is a lesser included offense of
 aggravated robbery, and aggravated robbery is a lesser included offense of felony
 murder, attempted aggravated robbery is a lesser included offense of felony
 murder); Moore v. State, 969 S.W. 2d 4, 9 (Tex. Crim. App. 1998)(where
 voluntary manslaughter is a lesser included offense of murder, and murder is a
 lesser of capital murder, then voluntary manslaughter is a lesser included offense

                                           13
two offenses are constitutionally the same, then, for double jeopardy purposes.

Rehearing should be granted because this Court erred in holding otherwise.29

                                        III.
                            This Court did not consider
                                  Ex parte Nielsen

      In Brown v . Ohio, after noting that “[t]he Blockburger test is not the only

standard for determining whether successive prosecutions impermissibly involve the

same offense,” the Supreme Court referred to the test formulated in Ex parte

Nielsen.30 There, two indictments were presented against the defendant on the same

day; one charged that he cohabitated with two different women, and the other that he

had committed adultery with one of these same women when he was married to

another.31 He pled guilty to the first indictment (cohabitation), then asserted that the

second indictment (adultery) was barred by double jeopardy because the two charged




 of capital murder).
        29
              Brown v. Ohio, 432 U.S. at 168 (“The greater offense is therefore by
 definition the ‘same' for purposes of double jeopardy as any lesser offense
 included in it.").
        30
              Brown v. Ohio, 432 U.S. at 166 n. 6 (1977); see also Stephens v.
 State, 806 S.W.2d 812, 815 (Tex. Crim. App. 1990)(“the Court also reaffirmed the
 ‘same incidents’ test contained in In re Nielsen”).
        31
              131 U.S. 176 (1889).

                                           14
offenses were in fact one and the same.32 “Cohabitation” as charged in the first

indictment meant living together as husband and wife. That, said the Court, is also

an “integral part” of adultery, which was charged in the second indictment.

      We are satisfied that a conviction was a good bar, and that the court was
      wrong in overruling it. We think so because the material part of the
      adultery charged was comprised within the unlawful cohabitation of
      which the petitioner was already convicted, and for which he had
      suffered punishment.33

      Mr. Castillo also prevails under the Nielsen test. As in Nielsen, the aggravated

assault charged in the second indictment is an “integral part” of the capital murder

charged in the first. The prosecutors certainly said so before the capital trial began

when insisting on their right to prove in that trial the assault against Carol Sanchez.

It was “part of the State's case. . . . the same criminal transaction,” they argued. It

happened on the “same date . . . [and involved the] same criminal transaction, same

facts.” According to the prosecutors, everything allegedly done to her by Mr.

Castillo “was done to her as part of the capital murder.34 Later at trial, they spent a

considerable portion of their case proving this assault and the injuries Ms. Sanchez




        32
               Id. at 177.
        33
               Id. at 187.
        34
               [Defendant's Exhibit D, III–7-8][emphasis supplied]

                                            15
suffered — through the lengthy and graphic testimony of Ms. Sanchez herself,35

through other testimony,36 and through the introduction of some twenty photographs

and 76 pages of medical records.37 Just as in Nielsen, “the material part of the

[aggravated assault] charged was comprised within the [capital murder] of which”

Mr. Castillo has already been tried. As in Nielsen, successive trials for the same

offenses are barred by double jeopardy. This motion for rehearing should be granted

because the Court did not consider Mr. Castillo’s argument under Ex parte Nielsen,

even though that case also establishes that an effort by the state to prosecute him for

aggravated assault following his acquittal for capital murder is jeopardy-barred.

                                       PRAYER

      Thomas Castillo prays that this Court grant his motion for rehearing and hold

that the Double Jeopardy Clause bars his prosecution for the alleged aggravated

assault against Carol Sanchez. The judgment of the Court of Appeals that reversed

the order of the trial court denying his pretrial application for writ of habeas corpus

should therefore be affirmed and this cause should be remanded to the trial court



        35
               [Defendant's Exhibit D, III-89-95]
        36
               [Defendant's Exhibit D, IV–30-31]
        37
               See State’s Exhibits 97 - 116 & 236 in Volume Seven of Defendant’s
 Exhibit D.

                                           16
with an order to dismiss the indictment in 2010-CR-11317 with prejudice.

                                      Respectfully submitted:

                                       /s/
                                      MARK STEVENS
                                      310 S. St. Mary's
                                      Tower Life Building, Suite 1920
                                      San Antonio, Texas 78205
                                      (512) 226-1433
                                      State Bar No. 19184200

                                      MARIO DEL PRADO
                                      222 Main Plaza
                                      San Antonio, Texas 78205
                                      (210) 698-3533 office
                                      (210) 698-3701 fax
                                      State Bar No. 05653600

                                      Attorneys for Appellant

                          CERTIFICATE OF SERVICE

      I certify that a copy of this Motion For Rehearing was delivered to the Bexar

County District Attorney's Office; 101 W. Nueva; San Antonio, Texas 78205, on this

the 18th day of June, 2015.



                                      /s/
                                      MARK STEVENS




                                         17
                       CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. PROC. 9.4(i)(2)(B), I certify that this Motion For

Rehearing contains 3,786 words according to the word count of the computer

program used to prepare the brief.

                                      /s/
                                      MARK STEVENS




                                         18
