                          NUMBER 13-13-00002-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


MELVIN ALEJANDRO CASTILLO,                                                 Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 92nd District Court
                         of Hidalgo County, Texas.


                          MEMORANDUM OPINION

               Before Justices Rodriguez, Garza, and Perkes
                Memorandum Opinion by Justice Rodriguez
      Appellant Melvin Alejandro Castillo was charged by indictment with five felony

offenses: four charges of aggravated assault with a deadly weapon and one charge of

intoxicated assault. See TEX. PENAL CODE ANN. §§ 22.02(a), 49.07 (West 2011). After

pleading not guilty, a jury convicted Castillo of each charged offense. After a punishment

hearing, the trial court sentenced Castillo to eleven years’ imprisonment for each of the
aggravated assault convictions and ten years’ imprisonment for the intoxicated assault

conviction, with the sentences to run concurrently.

        By seven issues, Castillo contends that: (1–3) the evidence was insufficient to

support his convictions; (4–5) the State’s closing arguments were improper; (6) his

conviction for aggravated assault and his conviction for intoxication assault involving the

same victim constituted double jeopardy; and (7) he was denied due process and a fair

and impartial trial due to the cumulative effect of trial errors. We affirm, as modified.

                                         I.      BACKGROUND1

        This case involves a traffic accident that occurred on November 27, 2011, on U.S.

Highway 281 in Hidalgo County, Texas. Roberto Rodriguez Jr. (Roberto), the driver of a

blue Chevrolet Impala, provided the following testimony:

        I was on the far right lane and saw the vehicle on my far left lane. . . . I saw
        it veering off to the middle lane which I thought that’s where he was going to
        pass me. And he kept on to my lane and it was unavoidable. He veered
        off and that’s when he hit me into my lane. . . . I want to say [I was traveling]
        about 55 or 60. I had just entered the expressway. . . . It was a white
        vehicle.

Roberto agreed that it was a “very hard” impact. He remembered spinning and coming

to a stop “on the other side of the median.” According to Roberto, the other car “kept

going.” Roberto identified the passengers in his vehicle as Rocio Sanchez; Guadalupe

Martinez, his stepmother; and Aziria Rodriguez (Aziria), his fourteen-year-old sister.

        Officer Efrain Muniz, who was one of the first officers to arrive at the scene of the

collision, testified that fire department personnel extricated the back seat passengers,


        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
Martinez and Aziria, from the car and that an ambulance transported all four occupants to

the hospital for medical treatment.2 According to Officer Muniz, Roberto told him that he

saw a white vehicle approaching from the rear at a high rate of speed, the car struck him,

and then continued north. Officer Muniz testified that there were skid marks and gravel

where the white car left the road. Officer David Boyd, who was dispatched to the

accident site, testified that he located an unoccupied white Chevrolet Impala a mile and a

half north of the accident site. He stated that the vehicle had severe front-end damage.

        Wendell Herndon, a truck driver, testified that he saw the driver of a white Impala

driving erratically on the road, almost sideswiping his trailer. He described the driving as

“[v]ery[,] very swerving, erratic and speeding.” According to Herndon, after the white

Impala passed him, it “was just like all over the road.” Herndon noticed that the vehicle

had “front end damage.” He saw “one silhouette [in the vehicle] at the time.” According

to Herndon, “[the driver of the white Impala] lost control of the car . . . . [H]e went off the

highway down in between the get-on ramp at that exit . . . over the ramp into the ditch and

back on to the shoulder where the car came to a rest.” Herndon stopped his truck behind

the white Impala, and the driver exited the driver’s door, “came back to [Herndon’s] truck,”

and asked Herndon “for a ride out of there.” Herndon testified that when the man’s

request was refused, he “got frustrated and kind of took off walking . . . north in the ditch

until [he] disappeared.” Herndon identified Castillo as the person who was driving the

white Impala that morning.

        Sergeant Marivel Silva testified that she arrived at the scene of the accident and
        2
           The testimony reveals that Roberto had a bump on the back of his head and lower back; Sanchez
had a herniated disk; Martinez had a broken nose, fractured ribs, a punctured lung, spine injuries, and
multiple bruising and fractures of her face and arms; and Aziria had multiple facial fractures, a broken nose,
broken teeth, a dislocated hip, and a broken leg.

                                                      3
observed that the entire back end of the blue car had been damaged. She headed north

in search of a white four-door car and, a mile from the accident, located Officer Boyd with

a truck driver. The white car “was off to the side of the shoulder of the road.” After being

told that a male had exited the vehicle, she and Officer Javier Reynero searched both

sides of the roadway.      According to Sergeant Silva, she found a male, whom she

identified as Castillo, lying in an open field.      Sergeant Silva testified that as she

approached him, Castillo tried to get up, possibly to get away, but lost his balance and fell

as she reached him. Castillo had facial abrasions. He also had slurred speech” and “a

very strong odor of alcohol emitting from his breath.” Sergeant Silva agreed that Castillo

was exhibiting signs of intoxication “[b]ased on him falling, his speech, his bloodshot eyes

and the odor of alcohol emitting from his breath.” Officer Reynero also testified that

Castillo “had slurred speech and “sounded like he was drunk.” He agreed that Castillo

seemed confused, which is typical for someone who is extremely intoxicated.

       After Castillo was placed under arrest, he informed Sergeant Silva that he had

been in a fight in McAllen where he had injured his eye and that he was walking home

from downtown McAllen, which was more than ten miles from that location. Officer

Reynero testified that while being transported to the hospital for treatment, Castillo told

him “to give him a chance . . . that he had four kids . . . and to take him home or just to let

him go. . . . He did say that he was sorry and that he had made a mistake.”                On

cross-examination, Officer Reynero also testified that Castillo told him, on two occasions,

that he was not driving.

       The white Impala involved in the collision was registered to Castillo’s sister and

another person.     According to Castillo’s mother, Castillo had taken the vehicle the

                                              4
evening before to go to a party. At trial, Castillo did not dispute that he had been

drinking, but he did argue that another person had given him a ride home from a

barbeque.

        Castillo was charged by indictment on five felony charges arising from this

automobile accident. Counts one, three, four, and five were for aggravated assault of

the driver and each passenger in the blue Impala. Count two was for intoxicated assault

of one of the passengers. A jury found Castillo guilty of each offense charged. After a

punishment hearing before the bench, the trial court sentenced Castillo to eleven years’

imprisonment for each of the four aggravated assault counts and to ten years’

imprisonment for the intoxicated assault count. The trial court ordered the sentences to

run concurrently. Castillo filed a motion for new trial and a supplemental motion for new

trial, both of which the trial court denied by written order. This appeal followed.

  II.       SUFFICIENCY OF THE EVIDENCE TO SUPPORT AGGRAVATED ASSAULT CONVICTIONS

        By his first two issues, Castillo contends that the evidence was insufficient to

support his convictions for aggravated assault. He specifically challenges the sufficiency

of the evidence to establish (1) that he drove recklessly and (2) that he caused the

resulting injuries.3

A.      Applicable Law and Standard of Review

        “The standard for determining whether the evidence is legally sufficient to support

a conviction is ‘whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

        3
          Castillo does not challenge the sufficiency of the evidence to establish that he was the driver of
the car that struck the blue Impala, that he was intoxicated, or that the occupants of the other vehicle
sustained serious injuries as a result of the collision.

                                                     5
beyond a reasonable doubt.’” Johnson v. State, 364 S.W.3d 292, 293–94 (Tex. Crim.

App. 2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Brooks v. State,

323 S.W.3d 893, 898–99 (Tex. Crim. App. 2010). The fact-finder is the exclusive judge

of the credibility of witnesses and of the weight to be given to their testimony. See

Jackson, 443 U.S. at 326; Anderson v. State, 322 S.W.3d 401, 405 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref'd) (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App.

2008)).

        We measure the sufficiency of the evidence against the hypothetically correct jury

charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v.

State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc)). Such a charge is one

that accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009). Under the law as

authorized by the indictment in this case, a person is guilty of aggravated assault if he

commits an assault which causes serious bodily injury to another or uses or exhibits a

deadly weapon during the commission of the assault.4 See TEX. PENAL CODE ANN. §

22.02(a); see also id. § 22.01(a)(1) (“A person commits [assault] if the person . . .

intentionally, knowingly, or recklessly causes bodily injury to another . . . .”). The penal

code defines the culpable mental state of recklessness as follows:

                A person acts recklessly, or is reckless, with respect . . . to the result
        of his conduct when he is aware of but consciously disregards a substantial
        and unjustifiable risk that the . . . result will occur. The risk must be of such

        4
            Each indictment alleged that Castillo used or exhibited “a deadly weapon, to-wit: a motor
vehicle.”
                                                  6
       a nature and degree that its disregard constitutes a gross deviation from the
       standard of care that an ordinary person would exercise under all the
       circumstances as viewed from the actor’s standpoint.

Id. § 6.03(c) (West 2011).

B.     Was the Evidence Sufficient to Show that Castillo Acted Recklessly?

       Castillo claims, in his first issue, that there was no evidence to establish that he

acted, at least, recklessly.   He asserts that he did not act recklessly in any of the

following ways alleged in the indictment: (1) by driving a motor vehicle at an excessive

speed; (2) by failing to control his motor vehicle; or (3) by failing to keep a proper lookout

for another motor vehicle.

       1.     Excessive Speed

       As one alternative, the jury was authorized to convict Castillo if the jury found he

recklessly caused the resulting injuries by operating his motor vehicle at an excessive

speed. Castillo contends that Roberto’s testimony that Castillo’s vehicle was traveling at

a high rate of speed in no way supports a finding that Castillo was reckless. No one

asked Roberto what he meant by a “high rate of speed,” and there was no testimony that

Castillo was traveling above the posted speed limit on the highway. Castillo argues that

Roberto’s perception that he was traveling at a high rate of speed could have been

distorted considering that Roberto was likely traveling slow while entering the highway.

       Although there was no testimony presented establishing the actual or probable

speed at which Castillo was driving at the time of impact, Roberto, the driver of the vehicle

that was struck, testified that he “was heading northbound on 281” and “noticed in [his]

rear view a vehicle coming very fast.”         And Roberto’s undisputed trial testimony

established that Roberto was travelling at least fifty-five miles per hour when struck from

                                              7
behind with great force. The impact sent Roberto’s vehicle spinning, coming to a stop

after several revolutions. The collision sent all of the occupants of the blue Impala to the

hospital. The entire back end of the blue Impala had damage, and the front end of the

white Impala had severe damage. 5 From this evidence, a rational jury could have

determined that Castillo acted reckless by driving at an excessive rate of speed. See

Johnson, 364 S.W.3d at 293–94; Brooks, 323 S.W.3d at 898–99; see also TEX. PENAL

CODE ANN. §§ 6.03(c), 22.02(a); Ashorali v. State, No. 05-06-01476-CR, 2008 WL

726202, at *7 (Tex. App.—Dallas Mar. 19, 2008, pet. ref’d) (not designated for

publication) (noting that the extent of damage to the vehicles was probative as to whether

excessive speed was a causative factor in the automobile collision and concluding that

“[s]evere impact damage to both cars likewise showed excessive speed as a factor in the

accident”).

       In addition, although Roberto's car immediately spun several times before coming

to a stop following the collision, Castillo left the scene in his car and then on foot. Such

conduct demonstrates consciousness of guilt and supports a determination that Castillo

knew his conduct was reckless. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim.

App. 1994) (en banc) (explaining that evidence of flight is a circumstance from which jury

can infer guilt); Rumbaugh v. State, 629 S.W.2d 747, 753 (Tex. Crim. App. 1982) (en

banc) (same); see also TEX. PENAL CODE ANN. § 6.03(c); Ashorali, 2008 WL 726202, at *7.

       5
          And even had Castillo been traveling within the posted speed limit and Roberto been traveling
slowly as he entered the highway, Texas law provides:

       An operator shall, if following another vehicle, maintain an assured clear distance between
       the two vehicles so that, considering the speed of the vehicles, traffic, and the conditions of
       the highway, the operator can safely stop without colliding with the preceding vehicle or
       veering into another vehicle, object, or person on or near the highway.

TEX. TRANSP. CODE ANN. § 545.062(a) (West 2011).
                                                     8
       2.      Failure to Control Motor Vehicle or Failure to Keep Proper Lookout

       As second and third alternatives, the jury was authorized to convict Castillo if it

found he recklessly caused the resulting injuries by failing to control his vehicle or failing

to keep a proper lookout. Castillo argues that the evidence only shows that he struck

Roberto’s vehicle from behind and “does not automatically translate into recklessness by

Castillo.”   He asserts that there was no evidence of road or weather conditions or

whether he should have seen Roberto’s car in time to avoid a collision. Yet the following

cross-examination testimony of Officer Muniz related to weather conditions:

       Q.      Can you describe, Officer, the weather conditions on November 27
               at 5:53 a.m.?

       A.      It was cold that morning.

       Q.      Was it foggy?

       A:      I don’t recall it being foggy.

       Q.      Was it raining?

       A.      It was not raining.

       There was also testimony by Roberto that he was traveling in the right hand lane

going at least fifty-five miles per hour just prior to the collision. Roberto saw Castillo’s

vehicle approaching from behind in the far, left-hand lane of the expressway. According

to Roberto, Castillo’s vehicle then moved to the middle lane and then into the right lane

before it hit Roberto’s vehicle. From this evidence, a rational jury could have found, even

if the excessive-speed allegation as a manner and means of recklessness is set aside,

that Castillo failed to control his vehicle, failed to maintain a proper lookout for other

vehicles, or both. See Johnson, 364 S.W.3d at 293–94; Brooks, 323 S.W.3d at 898–99;

see also TEX. PENAL CODE ANN. §§ 6.03(c), 22.02(a).
                                          9
       Also, as noted above, Castillo’s flight from the accident is evidence as to

consciousness of guilt. See Bigby, 892 S.W.2d at 883; Rumbaugh, 629 S.W.2d at 753;

see also Ashorali, 2008 WL 726202, at *7.           Finally, another indicator of Castillo’s

awareness as to the wrongful nature of his actions was his changing version of the events

of that particular night. See TEX. PENAL CODE ANN. § 6.03(c); Couchman v. State, 3

S.W.3d 155, 163–64 (Tex. App.—Fort Worth 1993, pet. ref'd); see also Richmond v.

State, No. 13-10-00349-CR, 2012 WL 3265088, *6 (Tex. App.—Corpus Christi Aug. 9,

2012, pet. ref’d) (mem. op., not designated for publication). Castillo first explained to the

officers that he had injured his eye in a fight in McAllen, Texas, and that he was walking

home from downtown McAllen, a distance of more than ten miles. On the way to the

hospital, he asked the officers “to give him a chance” and explained “that he was sorry

and that he had made a mistake.” Castillo also told the officers that he had not been

driving the car and, at trial, argued that another person was driving the white Impala and

that he had been a passenger at the time of the collision as they were en route to his

home. From Castillo’s changing story about the crime and surrounding circumstances,

the jury may have inferred a consciousness of guilt.          See TEX. PENAL CODE ANN.

§ 6.03(c).

       3.     Summary

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

rational jury could have found that Castillo acted recklessly. See Johnson, 364 S.W.3d

at 293–94; Brooks, 323 S.W.3d at 898–99. The evidence was sufficient to establish the

culpable mental state of recklessness.            See TEX. PENAL CODE ANN. § 6.03(c).

“Reaching any other conclusion would require us to substantially intrude upon the jury’s

                                             10
role as the sole judge of the weight and credibility of the evidence, which we must not do.”

Goodrich v. State, 156 S.W.3d 141, 147 (Tex. App.—Dallas 2005, pet. ref’d); see

Jackson, 443 U.S. at 326; Anderson, 322 S.W.3d at 405 (citing Lancon, 253 S.W.3d at

707). We overrule Castillo’s first issue.

C.     Was the Evidence Sufficient to Show that Castillo’s Recklessness in the
       Operation of his Vehicle Caused the Collision and Resulting Injuries?

       In his second issue, Castillo contends that the evidence was insufficient to

establish that his reckless conduct caused the accident and the resulting injuries.

Castillo claims that the State proved only that there was a rear end collision and not that

the accident would not have occurred but for his recklessness. See TEX. PENAL CODE

ANN. § 6.04(a) (West 2011) (providing that a person is criminally responsible if the result

would not have occurred “but for his conduct”). He contends, instead, that a concurrent

cause was clearly sufficient to produce the result and that his conduct was clearly

insufficient. See id. (exempting a person from criminal responsibility if a “concurrent

cause was clearly sufficient to produce the result and the conduct of the [person] clearly

insufficient”). We disagree.

       The Texas Penal Code provides that “[a] person is criminally responsible if the

result would not have occurred but for his conduct, operating either alone or concurrently

with another cause, unless the concurrent cause was clearly sufficient to produce the

result and the conduct of the actor clearly insufficient.” Id.; see Robbins v. State, 717

S.W.2d 348, 351 (Tex. Crim. App. 1986) (en banc). “If concurrent causes are present,

two possible conditions exist to satisfy the ‘but for’ requirement: (1) the defendant's

conduct may be sufficient by itself to have caused the harm, regardless of the existence of

a concurrent cause; or (2) the defendant's conduct and the other cause together may be
                                           11
sufficient to have caused the harm.” Robbins, 717 S.W.2d at 351. But if the additional

cause, other than the defendant's conduct, is clearly sufficient, by itself, to produce the

result and the defendant's conduct, by itself, is clearly insufficient, a defendant cannot be

convicted. Id.

        In this case, Castillo claims there were factors other than his recklessness which,

standing alone, were sufficient to cause serious injuries to the occupants of the other

vehicle. Castillo asserts that Roberto’s actions entering the highway “carelessly, slowly,

and without a proper lookout” caused the accident.6 However, there is no support for

Castillo’s contention.      In fact, as set out above, Roberto testified that he observed

Castillo driving fast behind him in the far left lane. If Castillo had stayed in the left lane

and not traveled through the middle lane and into the right lane, he would not have struck

the blue Impala. See, e.g., Hale v. State, 194 S.W.3d 39, 42–44 (Tex. App.—Texarkana

2006, no pet.) (finding that the act of stopping a vehicle in the roadway was not the sole

cause of the collision such that the defendant, driving the vehicle that struck the stopped

automobile, could escape criminal liability); Westbrook v. State, 697 S.W.2d 791, 792–93

(Tex. App.—Dallas 1985, pet. ref'd) (reasoning in a charge issue that even if the jury

found the collision was caused by Bromberg changing lanes, that fact would not have

established that the collision was not also caused concurrently by Westbrook's driving at

a high rate of speed, his own change of lanes, or his driving while intoxicated).

        Therefore, even had Roberto been driving, carelessly, too slowly, or without a

proper lookout, Roberto’s conduct and Castillo’s conduct together were sufficient to have

        6
           Without citing supporting authority, Castillo contends that Texas law dictates that a vehicle
entering a highway should yield to vehicles already traveling on the highway. See TEX. R. APP. P. 38.1(i)
(explaining that the appellant's brief must contain a clear and concise argument, including appropriate
citations to authority and the record).
                                                  12
caused harm and that satisfies the “but for” requirement establishing causation in this

case. See Robbins, 717 S.W.2d at 351. In addition, we cannot conclude, as Castillo

argues, that the evidence established that Roberto’s conduct was clearly sufficient, by

itself, to produce the result and that Castillo's conduct, by itself, was clearly insufficient.

See id.

        In sum, a fact-finder could reasonably have found that, “but for” Castillo's reckless

driving, the injuries would not have occurred. See TEX. PENAL CODE ANN. §§ 6.03(c),

22.02(a); Wooten, 267 S.W.3d at 296.                  So viewing the evidence in the light most

favorable to the verdict, we conclude the evidence was sufficient to establish causation.

A rational trier of fact could have found the causation element of aggravated assault

beyond a reasonable doubt. See Brooks, 323 S.W.3d at 898–99; Wooten, 267 S.W.3d

at 297. We overrule Castillo's second issue.7

                                      III.     CLOSING ARGUMENTS

        By his fourth issue, Castillo contends that the State made an improper jury

argument during the guilt-innocence stage of the proceeding that was a highly emotional

and prejudicial attack on Castillo and his attorney and that condemned Castillo for not

accepting responsibility in this case. He urges that this was a calculated attempt to

inflame the jurors and prejudice Castillo.

        By his fifth issue, Castillo asserts that the State made an improper closing

argument to the court during the punishment phase.                        He contends that the State

personally attacked him and condemned him for exercising his right to a jury trial.
        7
            By his third issue, Castillo argues that the evidence was insufficient to support his conviction for
intoxication assault; specifically, that the evidence was insufficient to show a causal link between his
intoxication and the resulting injuries. But having sustained his sixth issue below, we need not determine
this sufficiency challenge, as it is not dispositive of this appeal. See TEX. R. APP. P. 47.1.

                                                      13
Castillo claims that the State also requested a harsher punishment because he did not

plead guilty and injected testimony of extraneous acts not properly admitted as evidence.

          However, Castillo did not object to the State’s arguments about which he now

complains. Failure to object to jury argument at trial forfeits the right to raise the issue on

appeal. TEX. R. APP. P. 33.1; Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App.

2004) (en banc); see Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003)

(finding waiver of any error in prosecutor's statement of personal opinion in jury

argument); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc).

Because he did not object to the complained-of arguments, Castillo has waived error.

See TEX. R. APP. P. 33.1; Threadgill, 146 S.W.3d at 667, 670. We overrule the fourth

and fifth issues.

                                    IV.    DOUBLE JEOPARDY

          In his sixth issue, Castillo complains that his constitutional rights, specifically his

double-jeopardy protections, under the Fifth Amendment, see U.S. CONST.               AMEND.   V,

were violated when he was convicted of both intoxication assault (Count Two) and

aggravated assault (Count Five) involving the same person, Aziria Rodriguez. The State

concedes, and we agree, that, in this case, aggravated assault and intoxication assault

are the same offense for double jeopardy purposes because they involve the same

victim.

          In Ex parte Ervin, the court of criminal appeals addressed the issue of whether

convictions of intoxication manslaughter and manslaughter arising out of the same traffic

accident and involving a single victim violated the Fifth Amendment’s protection against

double jeopardy.        See 991 S.W.2d 804, 817 (Tex. Crim. App. 1999).               The court

                                                14
concluded “that manslaughter and intoxication manslaughter are the same offense for

double jeopardy purposes when they involve the same victim, and imposing convictions

for both in this situation violates the Double Jeopardy Clause.       A double jeopardy

violation occurs even when, as in this case, the sentences are concurrent.” Id. The Fort

Worth Court of Appeals subsequently held that intoxication assault and aggravated

assault are also the same offense for double jeopardy purposes when they involve the

same victim. See Burke v. State, 6 S.W.3d 312, 316 (Tex. App.—Fort Worth 1999),

vacated on other grounds, 28 S.W.3d 545 (Tex. Crim. App. 2000); see also Sylva v. State,

No. 13-01-139-CR, 2004 WL 42370, *2 (Tex. App.—Corpus Christi Jan. 8, 2004, pet.

ref’d) (not designated for publication).    Following the analysis of these cases, we

conclude that intoxication assault and aggravated assault in a case involving the same

accident and the same victim are the same offense for double jeopardy purposes.

       When, in a single criminal action, a defendant is convicted of two offenses that are

the same for double jeopardy purposes, the remedy is to vacate one of the convictions.

See Landers v. State, 957 S.W.2d 558, 559 (Tex. Crim. App.1997) (en banc); see also

Moreno v. State, 1 S.W.3d 846, 864 (Tex. App.—Corpus Christi 1999, pet. ref'd); Sylva,

2004 WL 42370, at *2. So we must now determine which conviction to vacate and which

to retain.

       “The Supreme Court has directed that when a defendant is convicted in a single

criminal action of two offenses that are the ‘same’ for double jeopardy purposes, the

remedy is to vacate one of the convictions.” Landers v. State, 957 S.W.2d 558, 559

(Tex. Crim. App. 1997), overruled on other grounds by Ex parte Cavazos, 203 S.W.3d

333, 338 (Tex. Crim. App. 2006) (citing Ball v. United States, 470 U.S. 856, 864–65

                                            15
(1985)). In making that determination, we retain the conviction for the “most serious”

offense and set aside the other conviction. Ex parte Cavazos, 203 S.W.3d at 337; see

also In re D.X.S., No. 13-12-00446-CV, 2013 WL 5522722, *4 (Tex. App.—Corpus Christi

Oct. 3, 2013, pet. filed on other grounds). “[T]he ‘most serious' offense is the offense of

conviction for which the greatest sentence was assessed.”         Ex parte Cavazos, 203

S.W.3d at 338.

       Of the two offenses in this case, the most serious offense is aggravated assault for

which Castillo was sentenced to eleven years in prison.         See id.   Accordingly, we

sustain Castillo's sixth issue, and we will vacate his conviction for intoxication assault

(Count Two) and its ten-year sentence and retain his conviction for aggravated assault

(Count Five) involving the same person, Aziria Rodriguez, and its eleven-year sentence.

                                V.     CUMULATIVE ERROR

       By his seventh issue, Castillo argues that the cumulative effect of the errors in the

trial court or a combination of any of these errors denied him due process and a fair and

impartial trial. Finding no error, we overruled Castillo's first, second, fourth, and fifth

issues. We further resolved his sixth issue by sustaining it and vacating the judgment

and sentence for intoxication assault. And because we vacated the intoxication assault

conviction, we did not address his third issue, which challenged the sufficiency of the

evidence to support that conviction.       We are aware of no authority holding that

non-errors or resolved errors may in their cumulative effect cause error.              See

Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (en banc); see also

Hughes v. State, 24 S.W.3d 833, 844 (Tex. Crim. App. 2000); Brown v. State, No.

13-11-00640-CR, 2013 WL 4769382, at *5 (Tex. App.—Corpus Christi Sept. 5, 2013, no

                                            16
pet.) (mem. op., not designated for publication). We overrule Castillo’s seventh issue.

                                   VI.   CONCLUSION

       We vacate the intoxication assault conviction on double jeopardy grounds. As

modified, we affirm the trial court's judgment. See TEX. R. APP. P. 43.2.



                                                              NELDA V. RODRIGUEZ
                                                              Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 13th
day of February, 2014.




                                           17
