                                                                                     ACCEPTED
                                                                                01-14-00389-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           1/28/2015 1:22:41 PM
                                                                            CHRISTOPHER PRINE
                                                                                         CLERK




             NOS. 01-14-00389-CR & 01-14-00390-CR
                                                              FILED IN
                                                       1st COURT OF APPEALS
                  IN THE COURT OF APPEALS                  HOUSTON, TEXAS
               FOR THE FIRST DISTRICT OF TEXAS         1/28/2015 1:22:41 PM
                                                       CHRISTOPHER A. PRINE
                                                               Clerk
               JOHNATHAN RENARD CASTANEDA
                         Appellant

                                v.

                      THE STATE OF TEXAS
                            Appellee


        On Appeal from Cause Numbers 1350501 & 1350815
       From the 263rd District Court of Harris County, Texas


                     BRIEF FOR APPELLANT



Oral Argument Not Requested                ALEXANDER BUNIN
                                           Chief Public Defender
                                           Harris County, Texas
                                           JANI MASELLI WOOD
                                           Assistant Public Defender
                                           Harris County, Texas
                                           TBN. 00791195
                                           1201 Franklin Street, 13th Floor
                                           Houston, Texas 77002
                                           Phone: (713) 368-0016
                                           Fax: (713) 368-9278

                                           Counsel for Appellant
                       IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                                     Johnathan Renard Castaneda
                                               TDCJ# 01927329
                                               Clements Unit
                                               9601 Spur 591
                                               Amarillo, TX 79107-9606

TRIAL PROSECUTOR:                              Matthew Roy Peneguy
                                               Assistant District Attorney
                                               Harris County, Texas
                                               1201 Franklin, 6th Floor
                                               Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:                      Robert Scott
                                               Attorney at Law
                                               5803 2nd St., Suite 101
                                               Katy, TX 77493

PRESIDING JUDGE:                               Hon. Jim Wallace, Presiding Judge
                                               263rd District Court
                                               Harris County, Texas
                                               1201 Franklin, 17th floor
                                               Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL:                     Jani Maselli Wood1
                                               Assistant Public Defender
                                               Harris County, Texas
                                               1201 Franklin, 15th Floor
                                               Houston, Texas 77002




1

       University of Houston Advanced Legal Writing Class, Fall 2014, assisted with the
research and drafting of this brief.
                                           i
                                            TABLE OF CONTENTS

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

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

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

          Mr. Castaneda's Version of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
          The State's Version of the Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
          Conflicting testimony - the sexual assault. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
          Other State's Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
          Mitigation Witnesses Who Provided Affidavits with Motion for New Trial . . . . . . . . . . 12

Summary of the Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

          Issue One: A defendant is entitled to a lesser included offense
          instruction in the jury charge when requested. Mr. Castaneda's defense
          counsel properly requested an instruction on the lesser included offense
          of aggravated assault because Mr. Castaneda testified he did not intend
          to kill Mr. Armstrong. The judge refused the request. Did the judge
          improperly refuse the requested instruction?. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

          Aggravated assault is a lesser included offense of murder. . . . . . . . . . . . . . . . . . . . . . . . . 15
          The evidence presented at trial supports the lesser included offense of aggravated assault.. . . 16
          The error in the charge resulted in sufficient harm to warrant reversal. . . . . . . . . . . . . . . . 18

          Issue Two: A jury may find a defendant not guilty of a greater offense,
          but guilty of a lesser-included offense. The trial court denied Mr.
          Castaneda's request for a jury instruction of the lesser-included offense
          of manslaughter. Did the trial court commit reversible error by denying
          this request?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
                                                                 ii
The requested jury charge of manslaughter is, as a matter of law,
a lesser-included offense of murder.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
The record supports a conviction of only manslaughter.. . . . . . . . . . . . . . . . . . . . . . . . . . 22
The error was harmful and requires reversal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Issue Three: The jury charge must distinctly set forth the law applicable
to the case. The trial court submitted a jury charge that was confusing
and did not clearly instruct the jury that the state carried the burden of
disproving self-defense. Was Mr. Castaneda egregiously harmed by the
trial court’s failure to properly instruct the jury on the law of self-
defense?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   26
Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       26
The Trial Court Committed Error by Submitting a Faulty Jury Instruction. . . . . . . . . .                                  27
Burden of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    29
Harm Analysis: The Errors in the Jury Charge Amounted to Egregious Harm.. . . . . . .                                       31
       A. The Jury Charge Itself. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             32
       B. Arguments of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .             32
       C. The Entirety of the Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               35

Issue Four: Every defendant has a right to trial on legally sufficient
evidence, which supports a conviction beyond a reasonable doubt for
each element of the charged offense. Mr. Castaneda was convicted of
aggravated sexual assault absent evidence that a deadly weapon was used
and exhibited during the assault, an essential element to the charged
offense. Did the jury convict Mr. Castaneda on the basis of insufficient
evidence?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

The hypothetically correct charge required the State to prove Mr. Castaneda
used and exhibited a deadly weapon during the assault. . . . . . . . . . . . . . . . . . . . . . . . . . 36
There was no proof Mr. Castaneda used and exhibited a deadly weapon
during the assault. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37




                                                        iii
          Issue Five: The trial court must hold an evidentiary hearing on a motion
          for new trial if the motion and affidavits raise matters not determinable
          from the record, and the accused could be entitled to relief. The trial
          court failed to hold a hearing on the motion, which included affidavits
          from available mitigation witnesses who defense counsel did not call to
          testify. Did the court improperly deny Mr. Castaneda a hearing on his
          motion for new trial?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

          Issue Six: The DNA court cost assessed against appellant is an
          unconstitutional tax on Mr. Castaneda.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Certificate of Compliance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50




                                                                   iv
                                        INDEX OF AUTHORITIES

Cases:

Almanza v. State,
     686 S.W.2d 157 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 31

Barrera v. State,
       982 S.W.2d 415 (Tex. Crim. App. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Barrios v. State,
        283 S.W.3d 348 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Barrios v. State,
        389 S.W.3d 382 (Tex. App.—Texarkana 2012, pet. ref’d).. . . . . . . . . . . . . . . . . 16

Barron v. State,
       353 S.W.3d 879 (Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Brooks v. State,
       323 S.W.3d 893 (Tex. Crim. App. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Burns v. State,
       923 S.W.2d 233 (Tex. App.-[14th Dist.] 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Cardenas v. State,
      423 S.W.3d 396 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Cavazos v. State,
      382 S.W.3d 377 (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . . . . . 16, 20, 21, 22

Crumpton v. State,
      301 S.W.3d 663 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Curry v. State,
       30 S.W.3d 394 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37, 38




                                                         v
Dowden v. State,
      758 S.W.2d 264 (Tex. Crim. App.1988) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Drichas v. State,
      175 S.W.3d 795 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Ex parte Lemke,
      13 S.W.3d 791 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Ex parte Watson,
      306 S.W.3d 259 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Forest v. State,
        989 S.W.2d 365 (Tex. Crim. App. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Gilder v. State,
        14-13-01088-CR, 2014 WL 7204962
        (Tex. App.—Houston [14th Dist.] Dec. 18, 2014, no. pet. h.). . . . . . . . . . . . . . 31

Gollihar v. State,
       46 S.W.3d 243 (Tex. Crim. App. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Gonzales v. State,
      717 S.W.2d 355 (Tex. Crim. App. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Hayward v. State,
     158 S.W.3d 476 (Tex. Crim. App.2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Hollander v. State,
      414 S.W.3d 746 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Jackson v. Virginia,
       443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Johnson v. State,
       423 S.W.3d 385 (Tex. Crim. App. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46




                                                            vi
Johnson v. State,
       915 S.W.2d 653 (Tex. App.-Houston [14th Dist.) 1996, pet. ref’d). . . . . . . 17, 18

LaFleur v. State,
      106 S.W.3d 91 (Tex. Crim. App. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38

Lawson v. State,
      775 S.W.2d 495 (Tex. App.-Austin 1989, pet. refd).. . . . . . . . . . . . . . . . . . . 17, 18

Lee v. State,
        29 S.W.3d 570 (Tex. App. – Dallas 2000, no pet.).. . . . . . . . . . . . . . . . . . . . . . . 31

Lucero v. State,
       246 S.W.3d 86 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42

Malik v. State,
      953 S.W.2d 234 (Tex. Crim. App. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Martinez v. State,
      74 S.W.3d 19 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42, 43

Matthews v. State,
      999 S.W.2d 563 (Tex. App. – Houston, [14th Dist.] 1999, pet. ref’d). . . . . . . . . 31

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . 38, 39

McKithan v. State,
      324 S.W.3d 582 (Tex. Crim. App. 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Merchant v. State,
      810 S.W.2d 305 (Tex. App.-Dallas 1991, pet ref’d).. . . . . . . . . . . . . . . . . . . . . . 23

Milburn v. State,
      15 S.W.3d 267 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). . . . . . . . . . . 44

Miles v. State,
        204 S.W.3d 822 (Tex. Crim. App. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27



                                                     vii
Moore v. State,
       983 S.W.2d 15 (Tex. App.-Houston [14th Dist.] 1998, no pet.). . . . . . . . . . . . . 44

Moore v. State,
       969 S.W.2d 4 (Tex. Crim. App.1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Ngo v. State,
       175 S.W.3d 738 (Tex. Crim. App. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Patterson v. State,
        769 S.W.2d 938 (Tex. Crim. App. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Peraza v. State,
       No. 01-12-00690-CR, 2014 WL 7476214
       (Tex. App. - Houston [1st Dist.] Dec. 30, 2014, pet. filed). . . . . . . . . . . 46, 47, 48

Plummer v. State,
      410 S.W.3d 855 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Reeves v. State,
        420 S.W.3d 812 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28, 29

Salazar v. State,
       87 S.W.3d 680 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Smith v. State,
       286 S.W.3d 333 (Tex. Crim. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42

Sweed v. State,
       351 S.W.3d 63 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Tidmore v. State,
      976 S.W.2d 724 (Tex. App.—Tyler 1998, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . 29

Trevino v. State,
       100 S.W.3d 232 (Tex. Crim. App. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




                                                     viii
Wallace v. State,
       106 S.W.3d 103 (Tex. Crim. App. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Westbrook v. State,
      846 S.W.2d 155 (Tex. App.-Fort Worth 1993, no pet.). . . . . . . . . . . . . . . . . . . . 22

Williams v. State,
       547 S.W.2d 18 (Tex. Crim. App. 1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Williams v. State,
       314 S.W.3d 45 (Tex. App.-Tyler 2010, pet. ref' d).. . . . . . . . . . . . . . . . . . . . . . . 19

Willis v. State,
        936 S.W.2d 302 (Tex. App.-Tyler, 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Winfrey v. State,
       323 S.W.3d 875 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Wortham v. State,
      412 S.W.3d 552 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17


Statutes and Miscellaneous:

TEX. CODE CRIM. PROC. ART. 36.14. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

TEX. CODE CRIM. PROC. ART. 37.09. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 20, 21

TEX. CODE CRIM. PROC. ART. 102.020(A)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

TEX. CRIM. PROC. ART. 102.020(H). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

TEX. GOV’T CODE ART. 411.1471(a)(1)(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

TEX. GOV'T CODE ANN. §772.006(A)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

TEX. PEN. CODE §9.32(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34



                                                         ix
TEX. PENAL CODE ANN. §12.33(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. PENAL CODE ANN. §19.02(A)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TEX. PENAL CODE ANN. § 19.02(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. PENAL CODE ANN. § 19.04.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TEX. PENAL CODE ANN. § 22.02(A)(L).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TEX. PENAL CODE ANN. §§ 22.02(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

TEX. PENAL CODE ANN. § 22.021(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Texas Criminal Patter Jury Charges—Defenses (2013), §B14.4 . . . . . . . . . . . . . . . . . . . 29, 31




                                                        x
                               STATEMENT OF THE CASE

       Johnathan Renard Castaneda was indicted for aggravated sexual assault of an
adult (1 C.R. at 12) and murder. (2 C.R. at 13).2 He was tried by a jury and was

convicted of both offenses on April 24, 2014. (1 C.R. at 69; 2 C.R. at 77). Mr.

Castaneda elected to have the court assess punishment. (7 R.R. at 5-8). At sentencing,
he admitted to a 2008 conviction for felony sexual assault as part of the aggravated

sexual assault conviction (7 R.R. at 5), cited in the first enhancement paragraph. (1
C.R. at 12, 73). He also admitted to a 2008 conviction of felony sexual assault of a
child as part of the murder conviction (7 R.R. at 5), cited in the first enhancement
paragraph. (2 C.R. at 13, 81). The court sentenced him to an automatic life sentence
for the enhanced aggravated sexual assault conviction (7 R.R. at 7-8; 1 C.R. at 73), and
45 years in prison for the murder. (7 R.R. at 8; 2 C.R. at 81).

       Mr. Castaneda filed a timely Notice of Appeal on April 24, 2014. (1 C.R. 77; 2

C.R. at 85). Appellate counsel was appointed on April 25, 2014. (1 C.R. at 80; 2 C.R. at
88). She filed a timely Motion for New Trial on May 22, 2014. (1 C.R. at 82; 2 C.R. at
90), which was presented to the judge on May 23, 2014. (1 C.R. at 174; 2 C.R. at 182).
The court did not rule on the request for a hearing on the Motion for New Trial. (1

C.R. at 158; 2 C.R. at 174). No order granting or denying the motion was issued by the
court. (1 C.R. at 159; 2 C.R. at 174).


2

       This appeal involves the consolidation of two charges, resulting in two clerk’s
records. The clerk's record for the aggravated sexual assault charge (Cause No. 1350501)
will be referred to as “1 C.R.” The clerk's record for the murder charge (Cause No.
1350815) will be referred to as “2 C.R.”
                                             1
                          ISSUES PRESENTED

Issue One: A defendant is entitled to a lesser included offense
instruction in the jury charge when requested. Mr. Castaneda's defense
counsel properly requested an instruction on the lesser included offense
of aggravated assault because Mr. Castaneda testified he did not intend
to kill Mr. Armstrong. The judge refused the request. Did the judge
improperly refuse the requested instruction?

Issue Two: A jury may find a defendant not guilty of a greater offense,
but guilty of a lesser-included offense. The trial court denied Mr.
Castaneda's request for a jury instruction of the lesser-included offense
of manslaughter. Did the trial court commit reversible error by denying
this request?
Issue Three: The jury charge must distinctly set forth the law applicable
to the case. The trial court submitted a jury charge that was confusing
and did not clearly instruct the jury that the state carried the burden of
disproving self-defense. Was Mr. Castaneda egregiously harmed by the
trial court’s failure to properly instruct the jury on the law of self-
defense?

Issue Four: Every defendant has a right to trial on legally sufficient
evidence, which supports a conviction beyond a reasonable doubt for
each element of the charged offense. Mr. Castaneda was convicted of
aggravated sexual assault absent evidence that a deadly weapon was used
and exhibited during the assault, an essential element to the charged
offense. Did the jury convict Mr. Castaneda on the basis of insufficient
evidence?

Issue Five: The trial court must hold an evidentiary hearing on a motion
for new trial if the motion and affidavits raise matters not determinable
from the record, and the accused could be entitled to relief. The trial
court failed to hold a hearing on the motion, which included affidavits
from available mitigation witnesses who defense counsel did not call to
testify. Did the court improperly deny Mr. Castaneda a hearing on his
motion for new trial?

Issue Six: The DNA court cost assessed against appellant is an
unconstitutional tax on Mr. Castaneda.




                                    2
                                STATEMENT OF FACTS

      Mr. Castaneda and the State's star witness agree on two important facts: (1) the

deceased complainant was threatening people with a firearm in an attempt to find his
missing truck keys; and (2) Mr. Castaneda killed the deceased in response to these

threats. Their stories diverge in regard to the circumstances surrounding the death and
what happened in the aftermath.

                           Mr. Castaneda's Version of the Facts

      Mr. Castaneda and the deceased complainant, Keith Armstrong, were
acquaintances. (6 R.R. at 13-14). In the late morning of June 8, 2012, Mr. Castaneda
was walking from the bus stop when Armstrong invited him over to his house. (6 R.R.

at 15-16). Mr. Castaneda went to Armstrong's house and had consensual sex with a

prostitute, Patricia Asberry. (6 R.R. at 19). He was supposed to pay $60 to Keith for
the sex but he failed to do so. (6 R.R. at 19). Mr. Castaneda then left alone to go to his
grandfather's house down the street. (6 R.R. at 20).
      Later that afternoon around 2 or 3 p.m., Mr. Castaneda went back to

Armstrong's house. (6 R.R. at 22). Armstrong was upset about Mr. Castaneda not

paying him for the sex with Patricia. (6 R.R. at 22). Mr. Castaneda told Armstrong that
he could pay him after he purchased and sold some crack. (6 R.R. at 22).

      Armstrong drove Mr. Castaneda around town searching for crack, but they did

not find any that met Mr. Castaneda's standards. (6 R.R. at 22-23). They then went
back to Armstrong's house, where another individual later arrived with crack cocaine




                                            3
that Mr. Castaneda purchased. (6 R.R. at 25). Mr. Castaneda then left to make some

sales .(6 R.R. at 26).

       Mr. Castaneda then headed back to his grandfather's house. (6 R.R. at 27). He
received a phone call from a woman that he was supposed to meet that night, so he

went to the bus stop near Armstrong's house. (6 R.R. at 27-28). As Mr. Castaneda was
passing by Armstrong's house, Armstrong was outside waiving a gun and told Mr.

Castaneda to come over to him. (6 R.R. at 28-30). Mr. Castaneda complied.

Armstrong told Mr. Castaneda that he wanted his truck keys; Mr. Castaneda said he
did not have them, and Armstrong ordered him into the house. (6 R.R. at 30-31).
Other residents of the house - Patricia Asbury, Margaret Stewart, and Charles Howard

- were also ordered to go inside. (6 R.R. at 28-31).

       Armstrong locked the burglar bars of the front door and began looking for his
keys while everyone nervously waited. (6 R.R. at 32). He was angry, drunk, and
carrying a pistol. (6 R.R. at 35). Patricia and Margaret told Mr. Castaneda “to be still
because Keith might start tripping out about his keys.” (6 R.R. at 43).

       After Armstrong could not find his keys, he began threatening individuals.

First, he put a gun to Patricia's head and she began to cry in fear. (6 R.R. at 37). Then
he approached Mr. Castaneda and told him, “I'm not saying that you have my keys,

but you're the only one who left.” (6 R.R. at 39). Mr. Castaneda emptied out his

pockets with the exception of his dope. (6 R.R. at 39-40). Armstrong told him to give
him the drugs but Mr. Castaneda refused. (6 R.R. at 41).




                                            4
      The altercation then escalated. Armstrong pointed the gun in Mr. Castaneda’s

face and repeated his demand to give him the drugs. (6 R.R. at 41). Mr. Castaneda,

who was scared at this point, tells Armstrong, “get that goddamn gun out of my face”
and he smacked it. (6 R.R. at 42-43). Armstrong got angry and pushed Mr. Castaneda

on the table. (6 R.R. at 43). As Mr. Castaneda stood up, Armstrong pointed the gun
about an inch from his chest. (6 R.R. at 43-44). Mr. Castaneda, thinking Armstrong

was going to kill him, grabbed the gun by the barrel with his left hand and hit

Armstrong a couple of times with his right. (6 R.R. at 45).
      The two men then began to wrestle. Mr. Castaneda hit Armstrong with an
uppercut, which dazed Armstrong. (6 R.R. at 45). Then all of the other people in the

house - Charles Howard, Patricia Asbury, and Martha Stewart - jumped on Mr.

Castaneda and began to punch and hit him with objects in the house. (6 R.R. at
45-47).
      Mr. Castaneda and Armstrong continued fighting while Mr. Castaneda held on
to the barrel of the gun. Mr. Castaneda kicked Armstrong in the testicles, which dazed

Armstrong. (6 R.R. at 49). Mr. Castaneda let go of the gun, punched Armstrong

multiple times, and then pushed him over. (6 R.R. at 49). Armstrong attempted to get
up. He was on his hands and knees when Mr. Castaneda kicked him multiple times

until Armstrong fell over. (6 R.R. at 61-62). Charles Howard, on his knees, was

grabbing Mr. Castaneda and trying to bring him to the ground. (6 R.R. at 62). Mr.
Castaneda heard someone say, “Grab the gun.” (6 R.R. at 62). Armstrong, still on the




                                           5
ground, shot “like three times.” (6 R.R. at 62). In response, Mr. Castaneda grabbed a

pipe and hits Armstrong approximately five times. (6 R.R. at 62-63).

       Mr. Castaneda shook Mr. Howard off of him by hitting him with a chair. (6
R.R. at 57). He tried to open the burglar bars on the front door but they were locked.

(6 R.R. at 57). Mr. Castaneda went to the side room where Margaret had gone (6 R.R.
at 57-58, 63). Mr. Howard came up behind Mr. Castaneda and put him in a chokehold

that nearly left Mr. Castaneda unconscious. (6 R.R. at 58, 63). Mr. Castaneda hit him

with a chair, which forced Howard to let him go. (6 R.R. at 58, 63).
       Mr. Castaneda began looking through the house for the keys to the burglar
bars. (6 R.R. at 63). When he was back in Armstrong’s room, Mr. Castaneda heard

Margaret Stewart leave the house, so he followed after her. (6 R.R. at 63). Mr.

Castaneda testified that he chased Margaret to the neighbor's house because he was
“mad” and “pissed off” because he believed she had the keys the whole time. (6 R.R.
at 68-69).
       Mr. Castaneda’s grandfather, Edward Mosely, confirmed that Mr. Castaneda

came to his house shortly afterward. (5 R.R. at 199-200). He testified that his grandson

was bleeding from his head and neck, his eye was swollen, he was “blistered up,” and
his “face was all scratched up.” (5 R.R. at 203-205). He testified that Mr. Castaneda

washed off the blood in his kitchen sink, asked for a clean shirt, and left after about 15

minutes. (5 R.R. at 220-223).
       After Mr. Castaneda left his grandfather’s house, he went to the corner of the

driveway and observed the police and paramedics arrive. (6 R.R. at 71-72). He had


                                            6
crack cocaine in his possession, so he did not want to talk to the police. (6 R.R. at 74).

He also did not “think it was worth talking to the police” because he did not know the

situation was as severe as it turned out to be and he “wasn’t thinking.” (6 R.R. at 74).
Mr. Castaneda then went to an abandoned house to spend the night. (6 R.R. at 74-75).

       The next day Mr. Castaneda went to his mother’s house. (6 R.R. at 79). His
family told him he should talk to the police to tell them his side of the story, but Mr.

Castaneda was scared and thought he needed to hire a lawyer. (6 R.R. at 80). He was

arrested three days later. (6 R.R. at 79-80).
       Mr. Castaneda admitted to lying to the police during their questioning of him.
He testified that he lied to the police when he told them: he kicked down the

bathroom door where Patricia was hiding (6 R.R. at 89-90); he paid Armstrong for sex

with Patricia (6 R.R. at 98); he had sex with Patricia on Wednesday and Thursday (6
R.R. at 102-103); and he hit Armstrong with the gun and chair. (6 R.R. at 115,
118-119). He admitted he did not tell the police about Armstrong firing the gun three
times at him (6 R.R. at 109).

                                The State's Version of the Facts

       Patricia Asberry was the only State's witness who could testify first-hand to the
events that occurred in Armstrong's house that night. At the time of her testimony,

she was housed in the Harris County jail for felony prostitution. (4 R.R. at 94-95). She

had 15 prior prostitution convictions, two felony convictions for forged checks, and
felony convictions for felony drug sales, namely cocaine. (4 R.R. at 95-98, 188-189).

She was serving a 25-year parole term when she was arrested for the felony


                                                7
prostitution offense she was charged with at the time of trial. (4 R.R. at 98, 201). She

admitted to being a regular crack smoker while on parole and during the period when

the incident occurred. (4 R.R. at 202).
       Asberry said that she had consensual sex with Mr. Castaneda on Wednesday

night, the day before the incident. (4 R.R. at 124-125). This occurred at Armstrong's
house in the back bedroom, which she rented. (4 R.R. at 101, 125).

       Asberry testified that Mr. Castaneda next came over to Armstrong's house on

Thursday afternoon to charge his cell phone. (4 R.R. at 135-136). She said that Mr.
Castaneda and Armstrong left two or three times afterward to buy liquor and beer and
crack. (4 R.R. at 137).

       When it was getting dark, Mr. Castaneda left the house for about 15 to 30

minutes according to Asberry. (4 R.R. at 139-140). About this time, Keith Armstrong
began looking for his car keys and was getting upset. (4 R.R. at 141-142). After Mr.
Castaneda came back, Armstrong told everyone to go in the house and he grabbed his
gun from his room. (4 R.R. at 142-143). Armstrong came out into the living room,

pointed the gun at Ms. Asberry's head, and told her he wanted the keys. (4 R.R. at

145). She began crying and insisted that she did not have them. (4 R.R. at 145).
       Then Armstrong went over to Mr. Castaneda with the gun behind his back and

told him he wanted his keys. (4 R.R. at 146). According to Ms. Asberry, Mr. Castaneda

raised up from the chair he was sitting and hit Armstrong, knocking him across the
room to the couch. (4 R.R. at 146). She said Armstrong never threatened Mr.

Castaneda with the gun. (4 R.R. at 146-147). Mr. Castaneda was “steady whooping”


                                           8
Armstrong and then slammed him on the floor. (4 R.R. at 150). According to Asberry,

Keith Armstrong no longer had the gun at this point and was no longer moving after

he hit the floor. (4 R.R. at 149, 152). She testified that Mr. Castaneda kicked his teeth
out, began hitting him with the pipe, and then hit him in the head with a stove and

music box. (4 R.R. at 152). Asberry tried to stop Mr. Castaneda by hitting him in the
back of the head. (4 R.R. at 152). He responded by hitting her with the pipe and

asking her, “you going to take up for him.” (4 R.R. at 152, 158).

      Asberry testified that she went back to her bathroom and locked it. (4 R.R. at
161-162). She heard Margaret hollering “I don't know where no gun is” and Mr.
Castaneda asking where the gun was. (4 R.R. at 162). She testified that it was quiet for

a few minutes and then Mr. Castaneda kicked in the bathroom door where she was

hiding. (4 R.R. at 165-166). Mr. Castaneda had a pipe in his hand according to
Asberry. (4 R.R. at 168). She testified that Mr. Castaneda then sexually assaulted her.
(4 R.R. at 169-173). He stopped and left after hearing the burglar bar door slam. (4
R.R. at 175). Asberry then went outside to see the ambulance and tell the police what

happened. (4 R.R. at 177-178).

                          Conflicting testimony - the sexual assault
      Right after defending himself, Mr. Castaneda left the house on Van Fleet Street

and went to his Grandfather’s home. There was never a sexual encounter with Ms.

Asberry later that day. However, during trial, Ms. Asberry testified that after Mr.
Castaneda defended himself against Mr. Armstrong, he had sex with her without her

consent. (4 R.R. at 172). Mr. Castaneda came to the bathroom where Ms. Asberry was


                                              9
hiding. He opened the door and told her to come out of the bathroom; Ms. Asberry

did so without objection. (4 R.R. at 169). Mr. Castaneda had a metal bar in his hand

when he first saw Ms. Asberry. However, he put the metal bar down on the table next
to him during the alleged encounter. (4 R.R. at 176). Mr. Castaneda was acting

different than the first time Ms. Asberry met him. (4 R.R. at 140). His whole attitude
had changed. His voice was different. He was not the same person. (4 R.R. at 167).

The jury found Mr. Castaneda guilty of sexually assaulting Ms. Asberry and the

murder of Mr. Armstrong. (6 R.R. at 187-88).
                                   Other State's Witnesses
       Officer G. Salcido was the first police officer who arrived at the crime scene. (3

R.R. at 47). He was trying to get information from Margaret, who was sitting on the

side of the street, when Asberry walked by the scene (3 R.R. at 48). Asberry said she
had been raped. (3 R.R. at 49-50). Salcido and another officer searched the house, and
found a person lying on the floor in a pool of blood, and an older gentleman in the
house. (3 R.R. at 52-53). Salcido testified that the house was “all torn up,” and “it was

all chaos in there.” Salcido later transported Asberry to the hospital. (3 R.R. at 56).

       Owen Tompkins was the crime scene officer who documented the crime scene.
(3 R.R. at 77). He described the house as “extremely bloody … fairly unkempt itself,

not very clean.” (3 R.R. at 82). He testified that Armstrong, the decedent, did not

appear to have been disturbed from where he initially fell. (4 R.R. at 18). He did not
find a gun or any bullets or shell casings. (4 R.R. at 63). He found broken table legs




                                             10
covered in blood (4 R.R. at 29), broken chair legs covered in blood (4 R.R. at 33-34),

and a metal table leg covered in blood. (4 R.R. at 47-48).

        Mark Stahlin was the homicide officer on the case. (4 R.R. at 268). He said that
the house where the homicide occurred “looked like a tornado had gone through.

Nothing really was in its place. … There was blood on the walls, blood on the carpet.
The complainant, Baron Armstrong, was laying on the floor.” (4 R.R. at 273). There

were broken off items from a wooden chair near the decedent. (4 R.R. at 283-284).

There was a wooden table lying on its side. (4 R.R. at 285). There were metal table legs
close to the body and further away. (4 R.R. at 286). He did not locate any semen in the
back bedroom, nor did he find any evidence of sexual assault. (4 R.R. at 302, 305). He

did find a car key and house keys in Armstrong's bedroom. (4 R.R. at 308).

        Sergeant C.E. Elliott was another homicide officer who worked the case. (5
R.R. at 84). He took photos of Mr. Castaneda when he was arrested three days after
the incident. (5 R.R. at 110). There were no injuries to Mr. Castaneda's back according
to Elliott. (5 R.R. at 112). There was a scratch across his right forearm with dried

blood. (5 R.R. at 113). He also had an abrasion on his right hand knuckle. (5 R.R. at

114).
        Dr. Albert Chu was the assistant medical examiner for the Harris County

Institute of Forensic Sciences who examined Armstrong. (5 R.R. at 118, 122). He

testified that Armstrong's cause of death was blunt trauma of the head and neck. (5
R.R. at 153). There was bleeding of different layers of the brain, which can cause

death. (5 R.R. at 153). He testified that there was “quite a bit of facial trauma” and a


                                           11
deformed shape of the head due to fractures of the facial bones. (5 R.R. at 134). He

also had multiple abrasions across the back of the head. (5 R.R. at 139). In Chu's

opinion, Armstrong had been struck multiple times. (5 R.R. at 141-142).
       Dr. Jennifer Love is a forensic anthropologist at the Harris County Institute of

Forensic Sciences who examined Armstrong. (5 R.R. at 164). She testified that
Armstrong’s fractures were “consistent with a minimum of five impacts to the face.”

(5 R.R. at 174). There were a few fractures to the skull that were likely a result of the

impact to the face. (5 R.R. at 175). Three ribs were fractured. (5 R.R. at 177). There
were several fractures in his neck. (5 R.R. at 181).
           Mitigation Witnesses Who Provided Affidavits with Motion for New Trial

       Defense counsel called no mitigation witnesses at the punishment phase of the

trial (7 R.R. at 7), but multiple witnesses were available to testify about mitigating
circumstances regarding Mr. Castaneda. (2 C.R. at 91-92). Mr. Castaneda received an
automatic life sentence for the enhanced aggravated sexual assault conviction (7 R.R.
at 7-8; 1 C.R. at 73), and 45 years in prison for murder. (7 R.R. at 8; 2 C.R. at 81).

       Linda Castaneda is Mr. Castaneda’s mother. (2 C.R. at 120). Her affidavit

attached to the Motion for New Trial said that she could testify about his history of
bipolar and schizophrenia. (2 C.R. at 120).

       Shandr'a Mosley Banks is a relative of Mr. Castaneda’s. (2 C.R. at 123). She

stated in her affidavit that Mr. Castaneda had been medicated for mental health issues
since elementary school; he was struck by a car shortly after being diagnosed with

bipolar and schizophrenia when he was a young man; he has been treated for those


                                              12
mental illnesses for many years; and she saw him the afternoon after the incident and

could testify about injuries he had suffered as a result. (2 C.R. at 123-124).

       Ruthie Hudson is Mr. Castaneda’s grandmother. (2 C.R. at 127). She stated in
her affidavit that Mr. Castaneda was diagnosed with ADHD and bipolar, and received

treatment at DePelchin Center. (2 C.R. at 127). She could also testify to the wounds
she saw he received after the incident. (2 C.R. at 127).

       Courtney Hutchinson and Shunta Richardson are Mr. Castaneda’s cousins. (2

C.R. at 118, 131). They both could testify to his mental illness. (2 C.R. at 118, 131).
       Mary Banks is Mr. Castaneda's aunt; her affidavit stated that Mr. Castaneda was
hit by a car, which resulted in head injuries. (2 C.R. at 108).

       J’onze Re’Banks has known Mr. Castaneda for 16 years. (2 C.R. at 134). He

discussed Mr. Castaneda’s struggles with mental illness and his various positive
character traits in his affidavit (2 C.R. at 134).




                                              13
                            SUMMARY OF THE ARGUMENT

       Two complicated serious felonies were tried together - aggravated sexual assault

and murder. The jury charge had numerous errors. Two, the failure to include the
lesser-included offenses of aggravated assault and manslaughter were objected to.

The evidence was raised to support those instructions and the trial court erred by
failing to include them. The requested self-defense instruction was so complicated

that it failed to sufficiently apprise the jury of the proper standard and burden.

       The evidence to support the aggravated portion of the sexual assault conviction
was insufficient because there was no evidence to support the weapon was used or
exhibited during the charged conduct. It was on a table - but its mere presence is

insufficient to support that conviction.

       During the punishment phase of the trial, no witnesses were offered in support
of Mr. Castaneda. Post-trial, a motion for new trial was filed with numerous affidavits
of witnesses who could have testified to Mr. Castaneda’s personal struggles. The trial
court refused to have a hearing despite new evidence bing proffered. Finally, the cost

bill has a $25- DNA testing fee. Under law from this court, that cost should be

stricken.




                                            14
                                            ARGUMENT

        Issue One: A defendant is entitled to a lesser-included offense
        instruction in the jury charge when requested. Mr. Castaneda's
        defense counsel properly requested an instruction on the lesser
        included offense of aggravated assault because Mr. Castaneda
        testified he did not intend to kill Mr. Armstrong. The judge
        refused the request. Did the judge improperly refuse the requested
        instruction?
        Mr. Castaneda’s request for an instruction on aggravated assault was denied by

the trial court. (6 R.R. at 144). A trial court may instruct the jury on a lesser included

offense if (1) the offense in question is a lesser included offense under Article 37.09 of
the Texas Code of Criminal Procedure and (2) there is some evidence that would
permit a rational jury to find that the defendant is not guilty of the greater offense but

is guilty of the lesser included offense. Hayward v. State, 158 S.W.3d 476, 478 (Tex.

Crim. App.2005); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.1998). If both
prongs of the test are met, the error is reviewed for harm. Trevino v. State, 100 S.W.3d
232, 242 (Tex. Crim. App. 2003).
        Because the lesser included offense of aggravated assault meets both prongs of

the test and Mr. Castaneda was harmed by the error in not including the offense in the

charge, the judgment and murder conviction must be reversed, and the case remanded
for a new trial based on the proper charge.

Aggravated assault is a lesser included offense of murder

        An instruction is required on a lesser included offense where the proof required
for the greater offense includes the proof necessary to establish the lesser included

offense. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). A person


                                                  15
commits aggravated assault if he intentionally, knowingly, or recklessly causes serious

bodily injury to another. TEX. PENAL CODE ANN. § 22.02(A)(L). A person commits

murder if he intentionally or knowingly causes another's death or intends to cause
serious bodily injury and commits an act clearly dangerous to human life that causes

the death of an individual. TEX. PENAL CODE ANN. § 19.02(B).
        Comparing the statutory definitions, the elements required to prove aggravated

assault are included in the elements necessary to establish murder. Therefore,

aggravated assault is a lesser included offense of murder. Salazar v. State, 87 S.W.3d
680, 683 (Tex. Crim. App. 2002). See Barrios v. State, 389 S.W.3d 382, 399 (Tex.
App.—Texarkana 2012, pet. ref’d)(explaining that “all of the elements of aggravated

assault were required to prove murder in this case, aggravated assault is a

lesser-included offense of murder...”) citing Dowden v. State, 758 S.W.2d 264, 269 (Tex.
Crim. App.1988) and Forest v. State, 989 S.W.2d 365, 367–68 (Tex. Crim. App.1999).
The evidence presented at trial supports the lesser included offense of aggravated assault
        The second prong of the test is satisfied if there is some evidence that would

allow a rational jury to find that the defendant is only guilty of aggravated assault.

Salazar, 87 S.W.3d at 683. The court may not consider the credibility of the evidence.
Wortham v. State, 412 S.W.3d 552, 558 (Tex. Crim. App. 2013). Anything more than a

scintilla of evidence entitles Mr. Castaneda to the lesser charge, regardless of whether

the evidence is weak, impeached, or contradicted. Id.; Cavazos v. State, 382 S.W.3d 377,
383 (Tex. Crim. App. 2012).

        The requisite intent of the defendant is a predominant factor in determining

whether an aggravated assault charge applies. Lesser included offenses have been
                                      16
allowed where the defendant presented evidence that negated an element of intent in

the charged offense. Wortham, 412 S.W.3d at 558. Often, the lack of intent is

established through the defendant's testimony.
      An aggravated assault instruction is proper even if the defendant killed the

deceased. For example, the court in Lawson v. State allowed a lesser included offense of
aggravated assault where Lawson testified that he did not intend to kill or shoot the

deceased. Lawson v. State, 775 S.W.2d 495, 499 (Tex. App.-Austin 1989, pet. refd). This

testimony negated the intent element of the charge. Id. At trial, Lawson confessed
that he shot the deceased, but claimed the killing was an accident. Id. at 496. The
deceased had threatened Lawson with a pistol, and Lawson fought back by jabbing

and pounding the deceased. Id. During the fight, the pistol discharged, killing the

deceased. Id. At trial, the court allowed charges on manslaughter and self-defense, but
denied the requested aggravated assault charge. Id. The appellate court held that
Lawson was entitled to the requested aggravated assault charge, and the jury was free
to believe or reject Lawson's testimony. Id. at 500.

      Emphasis on the defendant's testimony is also used to establish intent, rather

than negate it. In Johnson v. State, the defendant testified that when the deceased
slapped him, he loaded the gun and shot. Johnson v. State, 915 S.W.2d 653, 658 (Tex.

App.-Houston [14th Dist.) 1996, pet. ref’d). The defendant testified that he did not

intend to kill the deceased, but did intend to get the deceased off of him. Id. The court
noted that an aggravated assault charge would be required if there was testimony

indicating a lack of intent to kill the deceased. Id. at 660. However, the defendant's

testimony showed a deliberate intent to kill the deceased. Id.. Because the defendant's
                                         17
testimony established rather than negated intent, the court denied the requested

aggravated assault instruction. Id.

        Mr. Castaneda’s testimony negates intent rather than establishes intent. Similar
to the defendant in Lawson v. State, Mr. Castaneda specifically testified that he did not

intend to kill Mr. Armstrong. Identical to Lawson, who fought back when the
deceased threatened him with a pistol, Mr. Castaneda fought back when Mr.

Armstrong threatened him with a pistol. Unlike the defendant in Johnson, who testified

that he intended to shoot the deceased, Mr. Castaneda did not testify that he intended
to hurt Mr. Armstrong.
        Because a juror could rely on Mr. Castaneda’s testimony to find that Mr.

Castaneda did not intend to kill Mr. Armstrong, Mr. Castaneda was entitled to a

charge on the lesser included offense of aggravated assault. The credibility of Mr.
Castaneda's testimony negating intent rests in the hands of the jury; they alone decide
whether Mr. Castaneda was guilty of murder or aggravated assault.
The error in the charge resulted in sufficient harm to warrant reversal

        If error is found in the charge, the degree of harm necessary for reversal

depends on whether the appellant objected to the charge during trial. Almanza v. State,
686 S.W.2d 157, 171 (1984). If the error in the charge was timely objected to, reversal

is required so long as the error is not harmless. Id. The error is not harmless if it is

“calculated to injure the rights of defendant.” Id. The defendant's harm must be
calculated in light of the entire jury charge, the state of the evidence, the argument of

counsel, and any other relevant information revealed by the trial record. Id. Harm

exists when the penalty imposed for the charged offense exceeds the potential penalty
                                         18
for the lesser-included offense. Williams v. State, 314 S.W.3d 45, 53 (Tex. App.-Tyler

2010, pet. ref' d).

       Mr. Castaneda's defense counsel properly objected to the error in the charge
during trial. (6 R.R. at 144). Therefore, Mr. Castaneda is entitled to reversal so long

as the error was not harmless.
       The error here is apparent. The penalty imposed for murder far exceeds the

penalty imposed for aggravated assault. Aggravated assault is a second degree felony

punishable by imprisonment for any term of not more than 20 years or less than 2
years. TEX. PENAL CODE ANN. §§ 22.02(B), 12.33(A). Instead, Mr. Castaneda was
sentenced to 45 years in prison for murder (7 R.R. at 8). Even if the jury rejected the

self-defense charge, there was still evidence that Mr. Castaneda did not act with the

intent to kill. If Mr. Castaneda's actions merely amounted to aggravated assault, his
maximum sentence would be less than half of the sentence he received. Therefore,
Mr. Castaneda was harmed when the lesser-included offense of aggravated assault was
denied.




                                          19
        Issue Two: A jury may find a defendant not guilty of a greater
        offense, but guilty of a lesser-included offense. The trial court
        denied Mr. Castaneda's request for a jury instruction of the
        lesser-included offense of manslaughter. Did the trial court
        commit reversible error by denying this request?
        Mr. Castaneda requested manslaughter be included in the charge and the court

denied the request. (6 R.R. at 143-45). There is a two-pronged test to determine
whether a defendant is entitled to a jury instruction on a lesser-included offense. See

TEX. CODE CRIM. PROC. ANN. ART. 37.09, and discussion supra;. First, does the proof

necessary to establish the charged offense also include the lesser offense? Cavazos v.
State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012). The court answers this question by
comparing the elements alleged in the indictment with the elements of the lesser

offense. Id. Second, the court must determine if there is some evidence from which a

rational jury could acquit the defendant of the greater offense, but find him guilty of
the lesser-included offense. Sweed v. State, 351 S.W.3d 63, 67-68 (Tex. Crim. App.
2011). The first step is a question of law, and does not depend on evidence presented
at trial. Cavazos, 382 S.W.3d at 382. The second step is a question of fact and is based

on the evidence presented at trial. Id. at 383.

The requested jury charge of manslaughter is, as a matter of law, a lesser-included offense of murder.
        An offense is lesser included if, in relevant part, it “is established by proof of

the same or less than all the facts required to establish the commission of the offense

charged” or “if it differs from the charged offense only in respect to a lesser culpable
mental state.” TEX. CODE CRIM. PROC. ANN. ART. 37.09(1),(3). An offense qualifies

under Article 37.09(1) as lesser included if the indictment for the greater offense either

alleges all of the elements of the lesser-included offense, or the court determines they
                                            20
are nonetheless functionally the same or less than those required to prove the charged

offense. See Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009); see also

McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010).
       In Cavazos v. State, the Court of Criminal Appeals was faced with a similar

question as the one here: is manslaughter a lesser-included offense of murder, thus
rendering the jury charge of only murder reversible error? Cavazos, 382 S.W.3d at 384.

The differences between manslaughter and the charged offense in Cavazos are that

murder includes intent to cause serious bodily injury and the commission of an act
clearly dangerous to human life, whereas manslaughter requires recklessness, which 1s
a conscious disregard of a substantial and unjustifiable risk regarding circumstances or

results surrounding the conduct. Id.

       The Court determined that shooting the victim with a firearm, which was the
commission of an act clearly dangerous to human life, is the circumstance surrounding
the conduct, not the result itself, and would be the same under either murder or
manslaughter. Id. The Court then determined the intent element of both crimes. Id.

The defendant in that case shot the victim with a deadly weapon, implying that he had

the intent to cause the victim's death. Id. In comparison, the definition of recklessness
is disregarding a risk that circumstances exist or that a result will occur. Id.

       The Court concluded that causing death while consciously disregarding a risk

that death will occur differs from intending to cause serious bodily injury with death
resulting only in the respect that a less culpable mental state establishes its

commission. Id. (citing TEX. CODE CRIM. PROC. ANN.              ART.   37.09(3)). The Court

concluded that manslaughter is a lesser-included offense of murder. Id.
                                           21
       In the case sub judice, the base elements of murder, as alleged in the indictment,

are: (1) Johnathan Renard Castaneda (2) did unlawfully intend to cause serious bodily

injury to Baron Keith Armstrong and (3) did cause the death of Mr. Armstrong by (4)
intentionally and knowingly committing an act clearly dangerous to human life,

namely striking Mr. Armstrong with his hand and with an unknown object (2 C.R. at
13). In comparison, the base elements of manslaughter are (1) a person (2) recklessly

(3) causing the death of an individual. TEX. PENAL CODE ANN. § 19.04.

       Just as was the case in Cavazos, the only difference between the two offenses are
the intent to cause serious bodily injury and the commission of an act clearly
dangerous to human life, as compared to the recklessness element of manslaughter.

This Court can use the same reasoning applied in Cavazos to determine that causing

death while consciously disregarding a risk that death will occur differs from intending
to cause serious bodily injury with death resulting only in the respect that a less
culpable mental state establishes its commission. Manslaughter is a lesser-included
offense of murder in this case.

The record supports a conviction of only manslaughter.

       The second step in the “lesser-included offense” analysis is to determine if
there is any evidence raised that the defendant was guilty of only the lesser offense.

Cavazos, 382 S.W.3d at 385. More specifically, courts have held that manslaughter is a

lesser-included offense of murder only if there is some evidence of sudden passion in
the case arising from adequate cause. Westbrook v. State, 846 S.W.2d 155, 159 (Tex.

App.-Fort Worth 1993, no pet.). Both “adequate cause” and “sudden passion” are

defined as:
                                                 22
      (1) “Adequate cause” means cause that would commonly produce a
      degree of anger, rage, resentment, or terror in a person of ordinary
      temper, sufficient to render the mind incapable of cool reflection.

      (2) “Sudden passion” means passion directly caused by ... the individual
      killed or another acting with the person killed which passion arises at the
      time of the offense and is not solely the result of former provocation.

TEX. PENAL CODE ANN. §19.02(A)(1). Any evidence that the defendant acted under
the immediate influence of passion, without time for cool reflection, arising from

adequate provocation, supports sudden passion. See Burns v. State, 923 S.W.2d 233, 236

(Tex. App.-[14th Dist.] 1996). Something more than the presence of simple fear is
required; there must be evidence that the defendant's state of mind rendered him
incapable of cool reflection. See Gonzales v. State, 717 S.W.2d 355, 357-58 (Tex. Crim.

App. 1986).

      In order for a manslaughter charge to be proper, there must be evidence
presented at trial of the condition of the defendant’s mind at the time of the offense.
Merchant v. State, 810 S.W.2d 305, 310 (Tex. App.-Dallas 1991, pet ref’d). In Willis v.
State, the Court reasoned that no “sudden passion” was present because the

“[a]ppellant’s statement did not demonstrate such a sudden passion arising from

adequate case.” Willis v. State, 936 S.W.2d 302, 309 (Tex. App.-Tyler, 1996). Further,
“[a]ppellant never state[d] that the incident caused him to be afraid or angry, or that

he acted under any emotional distress.” Id.

      The record in this case contains direct evidence that Mr. Castaneda was under
the immediate influence of sudden passion arising from an adequate cause. Mr.

Castaneda testified at trial about the fear and anger he felt during his altercation with

Mr. Armstrong:
                                           23
       Q: (Mr. Scott)         So once he put the gun in your face, what does it do to you

                               psychologically, meaning what are you thinking?

       A: (Mr. Castaneda) I'm scared. I flip out. My whole demeanor changed .....
       Q:      Did you think he was going to kill you or not?

       A:      Yes, sir, I did.
       Q:      So you're in fear of your life, right?

       A:      Yes, sir.

       Q:       ... And your actions, I gather then, were protective at that point in time,
               correct?
       A:      Yes, sir.

(6 R.R. at 42-43, 45). The present case is distinguishable from that in Willis. Mr.

Castaneda acted with sudden passion when he entered into the physical altercation
with Mr. Armstrong. Further, Mr. Castaneda's actions arose from adequate cause;
namely, Mr. Armstrong threatening everyone in the house with a gun. There was
direct testimony in this case that Mr. Castaneda was experiencing intense emotions

when he was locked in the house on Van Fleet, and he acted under sudden passion

when the gun was pointed at him.
The error was harmful and requires reversal.

       The defense attorney made a specific request to the trial court following the

close of evidence and prior to closing arguments. (6 R.R. at 144-45). The trial court
denied defense counsel's request for the lesser-included offense instruction. (6 R.R. at

145). Because a timely objection was made to the jury charge, a showing of “some

harm” to a defendant will mandate reversal. Barron v. State, 353 S.W.3d 879, 883 (Tex.
                                        24
Crim. App. 2011). Mr. Castaneda received 45 years for murder - a conviction of a

lesser offense might well have resulted in a shorter sentence.    Therefore Mr.

Castaneda should be acquitted of the murder conviction.




                                        25
       Issue Three: The jury charge must distinctly set forth the law
       applicable to the case. The trial court submitted a jury charge that
       was confusing and did not clearly instruct the jury that the state
       carried the burden of disproving self-defense. Was Mr. Castaneda
       egregiously harmed by the trial court’s failure to properly instruct
       the jury on the law of self-defense?
Relevant Facts

       Mr. Castaneda was indicted for the murder of Baron Keith Armstrong. (2 C.R.

at 13). Patricia Asberry was the only witness called by the State who was at the house
when the murder occurred. (4 R.R. at 93). Asberry testified that the decedent,
Armstrong, was very angry and pointed a gun at her head in an attempt to find his

keys. (4 R.R. at 142, 145). She testified that after Armstrong pointed the gun at her

head, Armstrong walked over to Mr. Castaneda and told him that he wanted his keys.
(4 R.R. at 146). Asberry said that the gun was behind Armstrong’s back (4 R.R. at
146); Mr. Castaneda said that Armstrong pointed the gun at his face and an inch from
his chest. (6 R.R. at 41, 43-44). He said that Armstrong later shot the gun while he was

on the ground after being beaten by Mr. Castaneda. (6 R.R. at 62). In response, Mr.

Castaneda grabbed a pipe and hit Armstrong approximately five times. (6 R.R. at 62-
63). Armstrong died as a result of the beating.

       The jury charge included an instruction on self-defense (2 C.R. at 69-71).

Standard of Review
       Article 36.14 of the Texas Code of Criminal Procedure states in part:

       [I]n each felony case … tried in a court of record, the judge shall, before the
       argument begins, deliver to the jury…a written charge distinctly setting forth
       the law applicable to the case.



                                           26
       In analyzing a jury charge issue, an appellate court’s first duty is to decide

whether error exists. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If

error exists, the court then analyzes that error for harm. Id. If the appellant did not
object to the charge, the appeal courts examine the record for egregious harm. Id.

Errors that result in egregious harm are those that affect “the very basis of the case,”
“deprive the defendant of a valuable right,” or “vitally affect a defensive theory.” Ngo

v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005).

The Trial Court Committed Error by Submitting a Faulty Jury Instruction
       A “trial judge must ‘distinctly set[ ] forth the law applicable to the case’ in the
jury charge.” Reeves v. State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013) (citing TEX.

CODE CRIM. PROC. ART. 36.14). “‘It is not the function of the charge merely to avoid

misleading or confusing the jury; it is the function of the charge to lead and to prevent
confusion.’” Id. (quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)).
       The Court of Criminal Appeals has held that if a trial court signals that self-
defense is the law applicable to the case, then “any flaw in the charge on self-defense

amounts to an error in the charge.” Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim.

App. 1998). In Barrera, “the failure to apply the law of self-defense to the facts of the
case and to instruct the jury to acquit if they held a reasonable doubt on self-defense

was error.” Id.

       “While generally, ‘in the absence of evidence to the contrary, we will assume
that the jury followed its written instructions,’ this presupposes that the instructions

are understandable.” Reeves, 420 S.W.3d 818 (quoting Miles v. State, 204 S.W.3d 822,

827-28 (Tex. Crim. App. 2006)).
                                             27
       In the Reeves case, Judge Cochran criticized a self-defense provocation jury

instruction from Harris County. She noted that the “first application paragraph

contains 156 words in one sentence. The second paragraph contains 125 words in one
sentence. Neither is comprehensible.” Reeves at 818.

       The application paragraph of the jury instruction in this case stated:
               Therefore, if you find from the evidence beyond a reasonable
       doubt that the defendant, Johnathan Renard Castaneda, did cause the
       death of Baron Keith Armstrong with his hand or with an unknown
       object, as alleged, but you further find from the evidence, as viewed
       from the standpoint of the defendant at the time, from the words or
       conduct, or both of Baron Keith Armstrong it reasonably appeared to
       the defendant that his life or person was in danger and there was created
       in his mind a reasonable expectation or fear of death or serious bodily
       injury from the use of unlawful deadly force at the hands of Baron Keith
       Armstrong, and that acting under such apprehension … he struck Baron
       Keith Armstrong with his hand or an unknown object, then you should
       acquit the defendant on the grounds of self-defense; or if you have a
       reasonable doubt as to whether or not the defendant was acting in self-
       defense on said occasion and under the circumstances, then you should
       give the defendant the benefit of the doubt and say by your verdict, not
       guilty.
               If you find from the evidence beyond a reasonable doubt that at
       the time and place in question the defendant did not reasonably believe
       that he was in danger of death or serious bodily injury, or that the
       defendant … did not reasonably believe that the degree of force actually
       used by him was immediately necessary to protect himself against Baron
       Keith Armstrong’s use or attempted use of unlawful deadly force, then
       you should find against the defendant on the issue of self-defense.
(2 C.R. at 70-72)

       Admittedly the self-defense instruction in this case does not rise to the level of

the “six-page forest of legal ‘argle-bargle,’” in Reeves. Id. at 817. However, it does rival
Reeves in one respect: the length of the application paragraph. The Court noted that

the application paragraphs in Reeves included a 156- and 125-word run-on sentence.

The application paragraph in this case is a single 219-word sentence.
                                            28
       Also like Reeves, the application paragraph in this case did not clearly state the

law. Importantly, the charge is missing any mention of who carries the burden of

proving that Mr. Castaneda did or did not act in self-defense. When self-defense is at
issue, the “defendant has the initial burden of producing some evidence to justify

submission of a self-defense instruction. The State must then persuade the jury
beyond a reasonable doubt that the defendant did not act in self-defense.” Tidmore v.

State, 976 S.W.2d 724, 729 (Tex. App.—Tyler 1998, pet. ref’d).

       The self-defense instruction in this case did begin the application paragraph
with, “Therefore, if you find from the evidence beyond a reasonable doubt,” but the
jury could have understood the instruction to mean that Mr. Castaneda rather than the

State bore the burden of proving self-defense beyond a reasonable doubt.

       The Texas Criminal Pattern Jury Charge on “Defenses” provides a more clearly
articulated burden of proof for self-defense. It states:
Burden of Proof
       The defendant is not required to prove self-defense. Rather, the
       state must prove, beyond a reasonable doubt, that self-defense
       does not apply to the defendant’s conduct.

Texas Criminal Patter Jury Charges—Defenses (2013), §B14.4, at 206§§.
If such an instruction was given to the jury in this case, it would have been clear that

the State — not Mr. Castaneda — bore the burden of proof, and what exactly was to

be proven.
       Two other provisions of the charge could have also caused confusion for the

jury. The charge defined the various elements of murder and applied the facts to the

case on the page prior to discussing the elements and application of self-defense (2
                                         29
C.R. at 67-68). In the application paragraph on murder alone, the charge said, “If you

find from the evidence beyond a reasonable doubt that … Castaneda … did cause the

death of Baron Keith Armstrong … then you will find the defendant guilty of murder,
as charged in the indictment” (2 C.R. at 68). In this initial application paragraph,

provided before the self-defense charge, there was no mention that self-defense was
an issue. A preferable charge would have indicated that the jury needs to apply the law

of self-defense to the murder charge, as in: “If you find from the evidence beyond a

reasonable doubt that … Castaneda … did cause the death of Baron Keith Armstrong
… then you will find the defendant guilty of murder, as charged in the indictment, if
you do not find beyond a reasonable doubt that Mr. Castaneda acted in self-defense.”

       A final provision of the charge that may have caused confusion was the section

on non-provocation and no duty to retreat. The provision says that a “person who has
a right to be present at the location where the deadly force is used … and who is not
engaged in criminal activity at the time the deadly force is used is not required to
retreat before using deadly force.” Mr. Castaneda testified to possessing crack cocaine

at the time he engaged in self-defense, and as a result the jury could have understood

the charge to mean that Mr. Castaneda had a duty to retreat because of that criminal
activity which had nothing to do with the altercation. However, that section did end

by noting, “You are not to consider whether the defendant failed to retreat.” But the

conflict between the provisions of the charge and the facts of the case could have left
the jury confused.

       In conclusion, the trial court committed error since the jury instruction was

confusing in various respects and did not clearly state the law.
                                          30
Harm Analysis: The Errors in the Jury Charge Amounted to Egregious Harm

       Trial counsel did not object to the charge in this case. As a result, this Court

must review the error under the “egregious harm” standard of Almanza. Almanza v.
State, 686 S.W.2d 157 (Tex. Crim. App. 1985). Egregious harm consists of those

errors that affect the very basis of the case, deprive the defendant of a valuable right,
vitally affect a defensive theory, or make the case for punishment clearly and

significantly more persuasive. Lee v. State, 29 S.W.3d 570, 578 (Tex. App. – Dallas

2000, no pet.); Matthews v. State, 999 S.W.2d 563, 565 (Tex. App. – Houston, [14th
Dist.] 1999, pet. ref’d).
       To determine whether the record establishes that the appellant suffered
       egregious harm, a reviewing court must consider 1) the complete jury
       charge, 2) the arguments of counsel, 3) the entirety of the evidence,
       including the contested issues and weight of the probative evidence, and
       4) any other relevant factors revealed by the record as a whole. Neither
       party bears a burden of production or persuasion with respect to an
       Almanza harm analysis, the question being simply what the record
       demonstrates.

Hollander v. State, 414 S.W.3d 746 (Tex. Crim. App. 2013) (citations omitted).

However, the Fourteenth Court of Appeals has determined this exact instruction is
sufficient - but not necessarily clear. See Gilder v. State, 14-13-01088-CR, 2014 WL

7204962, at *4 (Tex. App.—Houston [14th Dist.] Dec. 18, 2014, no. pet.

h.)(explaining “[w]hile the instruction in this case is sufficient, the Texas Pattern Jury
Charge contains a more clear charge on self-defense. See Comm. on Pattern Jury Charges,

State Bar of Tex., Texas Criminal Pattern Jury Charges: Defenses § B14.4 (2013)”).




                                           31
      A. The Jury Charge Itself

      The charge in this case consisted of five parts: 1) the abstract that included the

statutory definitions and elements of the offense; 2) the self-defense instruction; 3) the
application paragraph; 4) an instruction on the use of prior offense evidence; and 5)

general instructions. The charge was confusing and failed to properly state the law.
      As previously mentioned, there were various provisions in the charge that could

have confused the jury. The initial application paragraph on murder failed to mention

that the jury should consider self-defense. There was also a confusing duty to retreat
provision.
      Nowhere in the application paragraph of the self-defense charge was it stated

that the state had the burden of proving beyond a reasonable doubt that the

defendant did not act in self-defense, but rather simply said, “if you have a reasonable
doubt….” The general instructions stated: “The prosecution has the burden of
proving the defendant guilty and it must do so by proving each and every element of
the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit

the defendant.” Self-defense is not an element of the offense. No reference to the

prosecution’s burden regarding self-defense is mentioned. Whether the state or
defendant has the burden of proving if the defendant did or did not act in self-defense

is critically important and could make all the difference in terms of whether or not the

defendant is acquitted.
      B. Arguments of Counsel

      Neither the State nor defense counsel mentioned whose burden it was to prove

or disprove self-defense during opening statements. (3 R.R. at 15-24). The State did
                                        32
not mention that Mr. Castaneda was going to claim self-defense, but defense counsel

did. Counsel noted that, “to defend himself my client and the man got into a fight

when the man was trying to kill him with the gun.” (3 R.R. at 22). Defense counsel
went on to note that the other members of the house jumped on Mr. Castaneda and

“he was having a fight with the landlord slash pimp slash dope dealer. And then
ultimately the man was killed.” (3 R.R. at 22-23). Defense counsel concluded opening

remarks by stating, “There was a fight. And if it had not been for my client’s ability to

fight with Mr. Armstrong, he would be dead now and he would have been gunned
down in that residence on Van Fleet Street. And it’s that pure and simple.” (3 R.R. at
24).

       During closing arguments, the State did not mention that it carried the burden

to disprove self-defense, though the State did argue as to why this case did not involve
self-defense. Much of the State’s arguments focused on self-defense requiring
“reasonable” force and that it be “immediately necessary.” (6 R.R. at 155-156). The
State claimed that the force used by Mr. Castaneda was “not to a reasonable degree.

It’s excessive, overkill. It’s murder.” (6 R.R. at 158). He later said that the force must

be “immediately necessary” and has “got to be a reasonable belief of an ordinary
person in that position.” (6 R.R. at 178).

       Unfortunately that is not an accurate description of the law. The self-defense

statutes say nothing about “an ordinary person in that position.” The deadly force
statute says that a person is justified in using deadly force against another “when and

to the degree the actor reasonably believes the deadly force is immediately necessary: to


                                             33
protect the actor against the other’s use of attempted use of unlawful deadly force.”

TEX. PEN. CODE §9.32(a)(2) (emphasis added).

      While the prosecutor misstated the law in its closing, the charge did accurately
state that the situation should be “viewed from the standpoint of the defendant at the

time” and the jury should consider if it “reasonably appeared to the defendant that his
life or person was in danger and there was created in his mind a reasonable expectation

or fear of death or serious bodily injury….” (2 C.R. at 71). The effect of the

prosecutor’s misstatement of the law was to effectively lower the standard of self-
defense by substituting an “ordinary person” standard for the law, which requires the
jury to consider the views of the actor – “ordinary” or not. This could make it harder

for Mr. Castaneda to prevail on his self-defense claim.

      Defense counsel did not specifically tell the jury that the State has the burden
of disproving self-defense, but he did attempt to explain self-defense. Counsel stated
that a person “can use deadly force against anyone if it’s a reasonable response to a
deadly force that is being levied against you or the perception of deadly force.” (6 R.R.

at 168). When defense counsel attempted to say that the jury should consider the

views of Mr. Castaneda “and what is his perception of what’s going on,” the court
sustained the State’s objection alleging defense counsel’s characterization was a

misstatement of law because the jury should only consider “what an ordinary person

in the defendant’s position” would consider. (6 R.R. at 167). Once again, the self-
defense statute says nothing about considering an “ordinary person.” The objection

should not have been sustained.


                                           34
       C. The Entirety of the Evidence

       Asberry and Mr. Castaneda — the only two witnesses who were at the scene

when the murder occurred and who testified — agreed that the complainant was
angry, he had a gun, and he pointed it Asberry. They agree that Armstrong’s actions

resulted in Asberry crying in fear.
       The two disagreed on the details of what happened next. Asberry said that

Armstrong had the gun when he walked over to Mr. Castaneda but did not point it at

him. Mr. Castaneda said that Armstrong pointed the gun at his head and chest.
Asberry did not say any shots were fired and that Mr. Castaneda continued to hit
Armstrong with a pipe after he was not moving on the floor. Mr. Castaneda said that

Armstrong shot at him, provoking him to hit Armstrong some more while Armstrong

was on the ground.
       The forensic evidence documented Armstrong’s significant physical damage to
his face, neck, and skull. The medical examiner testified that the cause of death was
blunt force trauma to the head and neck.

       In conclusion, Mr. Castaneda was egregiously harmed by the confusing charge

that failed to clearly tell the jury that the State carried the burden of proving that Mr.
Castaneda did not act in self-defense.




                                           35
       Issue Four: Every defendant has a right to trial on legally
       sufficient evidence, which supports a conviction beyond a
       reasonable doubt for each element of the charged offense. Mr.
       Castaneda was convicted of aggravated sexual assault absent
       evidence that a deadly weapon was used and exhibited during the
       assault, an essential element to the charged offense. Did the jury
       convict Mr. Castaneda on the basis of insufficient evidence?

       The Fourteenth Amendment guarantees the right to trial on legally sufficient
evidence. Jackson v. Virginia, 443 U.S. 307, 316 (1979); Brooks v. State, 323 S.W.3d 893,

916 (Tex. Crim. App. 2010). Therefore, this court must ensure that the evidence

presented actually supports the conclusion that Mr. Castaneda committed aggravated
sexual assault. See Winfrey v. State, 323 S.W.3d 875, 882 (Tex. Crim. App. 2010).
Viewing all of the evidence in the light most favorable to the verdict, evidence is

insufficient to support a conviction if no rational trier of fact could have found that

each element of the charged offense was proven beyond a reasonable doubt. Brooks,
323 S.W.3d at 917.
       Sufficiency of the evidence is measured by the elements of the offense as
defined by the hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct charge has its basis

in the indictment allegations. Gollihar v. State, 46 S.W.3d 243, 255 (Tex. Crim. App.
2001). It accurately sets out the law, is authorized by the indictment, and does not

unnecessarily increase the State's burden of proof. Malik, 953 S.W.2d at 240.

The hypothetically correct charge required the State to prove Mr. Castaneda used and exhibited a
deadly weapon during the assault

       A hypothetically correct charge for this case results from the statutory elements
of aggravated sexual assault outlined in the Texas Penal Code, as modified by the

                                              36
indictment. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). A person

commits aggravated sexual assault if he:

       1.      intentionally or knowingly causes the penetration of the anus or sexual
              organ of another person by any means,

       2.      without that person's consent; and
       3.     uses or exhibits a deadly weapon during the commission of the assault.

TEX. PENAL CODE ANN. § 22.021(A). The indictment requires the State to prove:

       1.     Mr. Castaneda unlawfully, intentionally and knowingly caused the
              penetration of the anus of Ms. Asberry by placing his sexual organ in the
              anus of Ms. Asberry,

       2.     without the consent of Ms. Asberry; and namely,

       3.     Mr. Castaneda compelled Ms. Asberry to submit and participate by the
              use of physical force and violence and in the course of the same criminal
              episode, Mr. Castaneda used and exhibited a deadly weapon, namely a
              metal bar (I C.R. at 12).

       Therefore, the State must prove as an essential element of the charged offense

that Mr. Castaneda used and exhibited a deadly weapon during the assault. There was
insufficient evidence to convict Mr. Castaneda of aggravated sexual assault because

the State failed to prove this element.

There was no proof Mr. Castaneda used and exhibited a deadly weapon during the assault
       Even if the jury could link Mr. Castaneda to an assault, he did not ‘use or

exhibit’ a deadly weapon during the course of the assault. When the jury is the fact

finder, there must be an express finding of a deadly weapon. LaFleur v. State, 106
                                        37
S.W.3d 91, 92 (Tex. Crim. App. 2003). To sustain a deadly weapon finding, the

evidence must demonstrate that: (1) the object meets the statutory definition of a

deadly weapon, (2) the deadly weapon was used or exhibited during the crime, and (3)
other people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798 (Tex.

Crim. App. 2005). These requirements do not increase the State's burden of proof, but
keeps it exactly the same. In contrast, if the State did not have to sustain a deadly

weapon finding, the burden of proof would decrease. See Curry, 30 S.W.3d at 405

(noting that deleting the phrase “by using and threatening to use deadly force namely,
a firearm” from the hypothetical jury charge would improperly decrease the State's
burden of proof).

       While the metal bar could meet the statutory definition of a deadly weapon, it

was not “used or exhibited” during the crime, and did not put Ms. Asberry in actual
danger.3 To “exhibit” a weapon, the defendant must consciously show or display the
weapon during the commission of the crime. Patterson v. State, 769 S.W.2d 938, 941
(Tex. Crim. App. 1989). Mere possession does not amount to use or exhibition.

Plummer v. State, 410 S.W.3d 855, 864 (Tex. Crim. App. 2013); McCain v. State, 22

S.W.3d 497, 503 (Tex. Crim. App. 2000).
       The object’s intended use under the specific circumstances helps determine

whether it is a deadly weapon. The determining factor is whether the weapon was
3

       There was an express finding that the metal bar was a deadly weapon when it was
included in the indictment. However, including the deadly weapon language in the
indictment does not amount to “use of exhibition” of the weapon to help facilitate the
charged offense. There is an extra step here that must be proved, and cannot be assumed.
See Crumpton v. State, 301 S.W.3d 663, 669 (Tex. Crim. App. 2009) (Meyers, J. dissenting)
(noting to simply connect the indictment, listing a deadly weapon, to the verdict, and skip
over the intermediate material that the jury considered, yields an incomplete analysis).
                                            38
used in facilitating the underlying crime. McCain, 22 S.W.3d at 503. There must be

some connection between the conscious exhibition of the weapon, and the

commission of the offense. Plummer v. State, 410 S.W.3d 855, 864 (Tex. Crim. App.
2013). The defendant must use the weapon to instill apprehension in the victim.

McCain, 22 S.W.3d at 503. Therefore, the jury must look beyond the mere fact that a
metal bar existed; the jury must consider all of the evidence surrounding the situation.

      For example, the victim in McCain v. State saw a knife sticking out of the

defendant's back pocket during a robbery. Id. The victim believed the object was a
knife, and that defendant would cut her with it. Id. at 499. The court concluded that a
juror could rationally conclude that the knife was exhibited during the criminal

transaction to instill a sense of apprehension in the victim, reducing the likelihood of

resistance during the encounter. Id. at 503.
      Unlike the defendant in McCain, who kept the knife in his back pocket during
the robbery, Mr. Castaneda put the metal bar down on a table during the charged
assault. (4 R.R. at 170). Mr. Castaneda did not keep the metal bar in his hand, nor on

his person when Ms. Asberry said he assaulted her my forcing her to engage in anal

sex. (4 R.R. at 170). Mr. Castaneda never consciously displayed the metal bar during
the assault. Mr. Castaneda never threatened Ms. Asberry with the metal bar during the

charged sexual assault. Mr. Castaneda never hit Ms. Asberry with the metal bar,

although the complainant stated the metal bar was within his reach during the assault.
(4 R.R. at 176). Further, unlike the victim in McCain, who believed the defendant

would cut her with the knife, there was no evidence presented that Ms. Asberry feared

Mr. Castaneda would hit her with the metal bar.
                                        39
         At most, the evidence here shows: (1) Mr. Castaneda previously had consensual

sex with Ms. Asberry; (2) Mr. Castaneda did have a metal bar on a table during the

assault; (3) Ms. Asberry did not feel threatened by the metal bar itself. Therefore, even
if the jury believed Ms. Asberry's testimony that an assault occurred, a rational juror

could not find that Mr. Castaneda compelled Ms. Asberry to participate in the episode
by using and exhibiting a metal pole that put Ms. Asberry in actual danger. The

evidence, even when viewed in the light most favorable to the verdict, is legally

insufficient to support a conviction of aggravated sexual assault beyond a reasonable
doubt.




                                           40
      Issue Five: The trial court must hold an evidentiary hearing on a
      motion for new trial if the motion and affidavits raise matters not
      determinable from the record, and the accused could be entitled to
      relief. The trial court failed to hold a hearing on the motion, which
      included affidavits from available mitigation witnesses who
      defense counsel did not call to testify. Did the court improperly
      deny Mr. Castaneda a hearing on his motion for new trial?

      Mr. Castaneda was entitled to a hearing on the Motion for New Trial because
his motion was supported by numerous affidavits from mitigation witnesses who were

not called to testify at the punishment phase of the trial. The Motion for New Trial

claims that defense counsel was ineffective for failing to call these mitigation
witnesses. Innumerable cases have determined that defense counsel's failure to call
witnesses to provide mitigation testimony amounts to ineffective assistance of

counsel.

      “A defendant is entitled to an evidentiary hearing on his motion for new trial if
the motion and accompanying affidavit(s) raise matters not determinable from the
record, upon which the accused could be entitled to relief.” Lucero v. State, 246 S.W.3d
86, 94 (Tex. Crim. App. 2008) (citing Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim.

App. 2003)). Affidavits must specifically set out the factual basis of the claim, but they

“need not establish a prima facie case.” Smith v. State, 286 S.W.3d 333, 339 (Tex. Crim.
App. 2009). Affidavits need only give rise to “reasonable grounds in support of the

claim.” Id. “The purpose of the hearing is to give the defendant an opportunity to

fully develop the matters raised in the motion.” Wallace, 106 S.W.3d at 108 (citing
Martinez v. State, 74 S.W.3d 19, 22 (Tex. Crim. App. 2002). Appellate courts review a

trial court's decision regarding granting a hearing on a motion for new trial under an


                                           41
abuse of discretion standard. Lucero, 246 S.W.3d at 94 (citing Martinez, 74 S.W.3d at

22).

       A defendant alleging ineffective assistance of counsel in a motion for new trial
will be entitled to a hearing if he alleges “sufficient facts from which a trial court could

reasonably conclude both that counsel failed to act as a reasonably competent attorney
and that, but for counsel's failure, there is a reasonable likelihood that the outcome of

his trial would have been different.” Smith, 286 S.W.3d at 340.

       In Martinez, the defendant was convicted of possessing five to fifty pounds of
marijuana and sentenced by a jury to eight years in prison. Martinez, 74 S.W.3d at 20.
Martinez filed a “Motion for New Trial and Hearing Thereon,” alleging ineffective

assistance of counsel because his trial counsel did not timely inform him that the state

had made a plea bargain offer recommending four years incarceration. Id. The motion
included an affidavit from Martinez alleging that he was informed of the plea offer
“the day before he was set to go to trial, and that the offer was increased to eight years
the next morning.” Id. The affidavit also stated that if he had known about jury

verdicts in that county, and he had sufficient time to discussion the “pros and cons”

of going to trial, he would have been able to more effectively consider the plea offer
and would have accepted it. Id.

       The Court of Appeals held that “the affidavit was deficient and his motion was

insufficient to put the trial court on notice that reasonable grounds existed to believe
that counsel's representation may have been ineffective.” Id. at 21. The court noted

three reasons why the affidavit was insufficient: 1) it stated that the defendant agreed

with “trial counsel's decision not to accept or reject the plea offer, and to wait to see
                                           42
what would happen the next morning,” the day of trial; 2) it “failed to state

unconditionally” that he would have accepted the plea offer if he knew about it in a

timely manner; and 3) the affidavit “failed to establish when the plea offer was made
by the state relative to when it was communicated to appellant and when the offer was

withdrawn.” Id.
      The Court of Criminal Appeals concluded that “the court of appeals erred in its

analysis of the sufficiency of appellant's affidavit supporting his new trial motion,” and

reversed and remanded the case with instructions to abate the appeal and remand it to
the trial court to conduct a hearing on the motion for new trial. Id. at 22. The court
noted that “defense counsel's failure to inform the defendant of a plea offer can

constitute ineffective assistance of counsel and warrant reinstatement of the plea

offer.” Id. (citing Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000)). That was the
claim on which the Motion for New Trial was based and which the affidavit
supported. As such, the “particulars of precisely when the plea offer was conveyed to
defense counsel and the amount of time it remained available for acceptance are

among factual matters that should be fully developed at a hearing.” Id.

      The trial record and affidavits that accompanied the Motion for New Trial in
this case make an equally strong or stronger case than Martinez for a claim of

ineffective assistance of counsel. As such, the trial court should have granted an

evidentiary hearing on the motion.
      The Motion for New Trial was based on an ineffective assistance of counsel

claim for failure to present punishment evidence (2 C.R. at 102). The record shows

that trial counsel did not call any mitigation witnesses at the punishment phase of the
                                            43
trial, but does not evidence any acknowledgment of available mitigation witnesses. (7

R.R. at 7). Defense counsel simply said, “Defense rests and closes, Judge.” (7 R.R. at

7). Multiple witnesses were available to testify about mitigating circumstances
regarding Mr. Castaneda, as evidenced by the affidavits that accompanied the motion

for new trial. Affidavits were provided by Mr. Castaneda's mother (2 C.R. at 120); his
grandmother (2 C.R. at 127); two cousins (2 C.R. at 118, 131); another relative (2 C.R.

at 123); and a friend of 16 years. (2 C.R. at 134). All could have testified to Mr.

Castaneda’s long-term mental illness, brain injuries caused by a car accident, and
positive character traits. None of this evidence was presented to the court during the
punishment phase or during an evidentiary hearing on the Motion for New Trial.

      Numerous courts have held that failure to investigate and present mitigation

witnesses during the punishment phase amounts to ineffective assistance of counsel.
The Fourteenth Court of Appeals held that defense counsel was ineffective for failing
to present any mitigating evidence at the punishment phase where the defendant was
convicted of a first-degree felony of possession with intent to deliver at least 400

grams of cocaine. Milburn v. State, 15 S.W.3d 267 (Tex. App.-Houston [14th Dist.]

2000, pet. ref'd). Two years prior to the Milburn decision, the same court held that trial
counsel was ineffective for failing to investigate any mitigation evidence for the

punishment phase where the defendant received a 99-year sentence for delivery of less

than 28 grams of cocaine with a prior felony conviction. Moore v. State, 983 S.W.2d 15
(Tex. App.-Houston [14th Dist.] 1998, no pet.). The court cited voluminous federal

case law in agreement. Id. at 23-24.


                                           44
       As previously noted, a defendant alleging ineffective assistance of counsel in a

motion for new trial will be entitled to a hearing if he alleges “sufficient facts from

which a trial court could reasonably conclude both that counsel failed to act as a
reasonably competent attorney and that, but for counsel's failure, there is a reasonable

likelihood that the outcome of his trial would have been different.” Smith, 286 S.W.3d
at 340 (emphasis in original).

       The failure of defense counsel to investigate and present available mitigation

witnesses means that counsel failed to act as a reasonably competent attorney. While
Mr. Castaneda did receive a mandatory life sentence for one of his convictions in this
case (7 R.R. at 7-8; 1 C.R. at 73), his murder conviction resulted in a 45-year prison

sentence, which could have been reduced if his family and friends were presented at

punishment to testify about his history of mental illness, brain injuries, and his good
character traits.
       Since the timely Motion for New Trial was supported by numerous affidavits
from mitigation witnesses who were not called to testify at the punishment phase, the

trial court should have granted an evidentiary hearing on the motion to determine if

trial counsel was ineffective and a new punishment hearing should be granted.




                                          45
       Issue Six: The DNA court cost assessed against appellant is an
       unconstitutional tax on Mr. Castaneda.
Preservation of Error

       Challenges to court costs can be raised for the first time on appeal and
“[c]onvicted defendants have constructive notice of mandatory court costs set by

statute and the opportunity to object to the assessment of court costs against them for

the first time on appeal or in a proceeding under Article 103.008 of the Texas Code of
Criminal Procedure.” Cardenas v. State, 423 S.W.3d 396, 399 (Tex. Crim. App. 2014).
In a companion case decided the same day, the Court further explained that because

the cost bill is most likely unavailable at the time of the judgment, an “[a]ppellant need

not have objected at trial to raise a claim challenging the bases of assessed costs on
appeal.” Johnson v. State, 423 S.W.3d 385, 391 (Tex. Crim. App. 2014).
Applicable Law
       The bill of costs for the sexual assault conviction reflect a $250 DNA fee. (1

C.R. at 75). TEX. CODE CRIM. PROC.        ART.   102.020(A)(1) provides that “[a] person

shall pay as a cost of court $250 on conviction of an offense listed in Section
411.1471(a)(1), Government Code.” Aggravated sexual assault is listed in Section

411.1471(a)(1)(D), Government Code. Thus the $250 cost was properly included in

the bills of cost.
       However in Peraza v. State, this Court held the DNA Record Fee was not a

legitimate court cost, but was instead an unconstitutional tax. Peraza v. State, No.

01-12-00690-CR, 2014 WL 7476214 (Tex. App. - Houston [1st Dist.] Dec. 30, 2014,
pet. filed), In reaching this conclusion, this Court relied on Ex parte Carson, 159

                                           46
S.W.2d 126, 130 (1942), wherein the Court of Criminal Appeals found that a $1 law

library fee was “neither necessary nor incidental to the trial of a criminal case” and as

such was “not a legitimate” cost of court.
       In Peraza, the Court first addressed the thirty-five percent of the funds which

are to be deposited in state highway fund. The Court determined that these funds
“may be used for any function of TxDOT” and are not specifically limited to “defray

the costs associated with collecting, storing, and testing DNA samples” Peraza at 6 &

7 (emphasis in original). After examining the TxDOT's mission statement and the
various statutes listing TxDOT's responsibilities, the Court held that because “the
responsibilities of TxDOT are far more remote from a criminal trial than the county

law libraries which were to be used by the judges and attorneys for trial preparation in

Carson”…it could not be “reasonably concluded that the portion of the revenue
collected through the ‘DNA Record Fee’ and dedicated to the state highway fund
constitutes a proper court cost to be assessed against appellant or any other criminal
defendant.” Id. at 7.

       The Court then turned to the remaining sixty-five percent which is deposited in

the criminal justice planning account. TEX. CRIM. PROC.        ART.   102.020(H). "The
criminal justice planning account is administered by the Criminal Justice Division

(“CJD”) of the Governor's Office. Peraza at 8 citing TEX. GOV'T CODE ANN.

§772.006(A)(2) (Vernon 2012). Once again looking at the administering organization's
mission, the Court determined “[t]he CJD …uses this money to ‘[s]upport a wide

range of projects designed to reduce crime and improve the criminal and juvenile

justice systems.’” Peraza at 9. The Court then found “the criminal justice planning
                                         47
account, which is funded by the ‘DNA Record Fee,’ [does not ]pass[ ] constitutional

muster” stating:

       …the money from the criminal justice planning fund is not required to
       be directed to the courts or to services necessarily or incidentally related
       to criminal trials. And often times such revenue is given to programs
       that, as the court in Carson specifically noted, could not possibly relate to
       legitimate court costs. See 159 S.W.2d at 127 (costs for training and
       education not legitimate court costs that may be assessed against criminal
       defendants).

Id., at 10. This court cost should be struck from the cost bill.

                                         PRAYER
       Mr. Castaneda prays this Court reverse and remand for a new trial, or
alternatively remand for a hearing on the motion for new trial or grant a new

punishment hearing.

                                          Respectfully submitted,
                                          ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County Texas
                                          /s/ Jani Maselli Wood
                                          ______________________
                                          JANI MASELLI WOOD
                                          Assistant Public Defender
                                          Harris County Texas
                                          State Bar Texas Number 00791195
                                          1201 Franklin, 13th Floor
                                          Houston Texas 77002
                                          Jani.Maselli@pdo.hctx.net
                                          (713) 368-0016
                                          (713) 368-4322
                                          TBA No. 00791195




                                            48
                             CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on January 28, 2015, a

copy of the foregoing was emailed to counsel for the state (through texfile.com) at the
following address:

      Alan Curry
      Assistant District Attorney
      1201 Franklin Street, 6th Floor
      Houston, TX 77002
      curry_alan@dao.hctx.net

                                        /s/ Jani Maselli Wood
                                 ___________________________________
                                 JANI MASELLI WOOD




                                          49
                         CERTIFICATE OF COMPLIANCE



              Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that
this brief complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).

       1.     Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this
brief contains 13, 567 words printed in a proportionally spaced typeface.

       2.     This brief is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced
by Corel WordPerfect software.
       3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against
the person who signed it.


                                          /s/ Jani J Maselli Wood

                                   ___________________________________
                                   JANI J. MASELLI WOOD




                                            50
