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Click here for the full text of this decision FACTS:Francisco “Frank” Sanchez was killed in a drive-by shooting. Rafael Almanza was shot in the same incident, but he survived. Felix Castillo, Jr. was charged by indictment with one count of murder for the killing of Sanchez and one count of attempted capital murder for trying to kill both Sanchez and Almanza. Castillo was tried jointly with two co-defendants: his wife Mary Socorro Avila Castillo (Mary), who was acquitted of the murder and attempted capital murder charges but convicted of tampering with evidence for disposing of the murder weapon, and Mary’s cousin, Javier Hernandez Reyes (Javier), who was acquitted of the murder and attempted capital murder charges. Castillo was convicted of murder and attempted capital murder. He appealed. HOLDING:Affirmed. Castillo first asserts that he has been punished twice for the murder of Frank Sanchez. Specifically, he argues that, because he was convicted and punished for Sanchez’s murder, the state should not have been able to use an attempt to murder Sanchez as part of the attempted capital murder charge. The court states that Castillo has raised an issue relating to the “multiple punishments” aspect of the double jeopardy doctrine. The Fifth Amendment’s multiple punishments prohibition is violated if a defendant “is convicted of more offenses than the legislature intended.” The court finds that each of the offenses Castillo was convicted of requires proof of a fact which the other does not: murder requires the death of an individual and attempted capital murder does not, and attempted capital murder requires an intent to kill more than one person and murder does not. Accordingly, the court concludes that the charged offenses are not the same for the purpose of double jeopardy. Castillo next argues he was provided ineffective assistance of counsel because his trial counsel 1. failed to withdraw from representing appellant after discovering that he had a conflict of interest; 2. failed to file a motion for severance of defendants on behalf of Castillo; 3. failed to file a motion for new trial; and 4. abandoned Castillo prior to the deadline for filing a motion for new trial. The alleged conflict arose from counsel’s dual representation of Castillo and his wife, Mary. The court holds that Castillo failed to identify any actual conflict of interest. The court points out that counsel’s dual representation ceased some two months before trial commenced. Furthermore, the record does not show that Castillo and his wife had divergent interests or ever advanced inconsistent defensive theories. Because the court cannot discern how the defensive theories of Castillo and Mary diverged, it finds that counsel never faced a choice of advancing either defendant’s interests to the detriment of the other. Therefore, the court states that it cannot conclude that any conflict had an adverse effect on specific instances of counsel’s performance. The court also finds that Castillo has not demonstrated how being tried separately would have affected the ultimate outcome of the proceedings. Because the court finds no basis for concluding that the evidence would have been different in a separate trial, it holds that no prejudice has been shown and that Castillo has not proved counsel’s ineffectiveness regarding the failure to request a separate trial for Castillo. As to counsel’s failure to file a motion for a new trial, the court finds no evidence to rebut the presumption that counsel adequately informed Castillo of his right to file a motion for new trial and that Castillo rejected the option. The court states that there is no evidence to show that Castillo was interested in filing a motion for new trial or that counsel did not adequately assist him in doing so. Prior to the appointment of appellate counsel, trial counsel protected Castillo’s right to appeal by timely filing a notice of appeal on his behalf. The court concludes that there is no merit in Castillo’s claims of ineffective assistance of counsel. Finally, Castillo contends that the trial court erred by admitting evidence of extraneous offenses because the state did not provide notice of its intent to offer such evidence. The court states that the ultimate issue is whether the state’s notice was reasonable. The court finds that no testimony of extraneous offenses was offered until 12 days after counsel received notice from the state. The court finds that this was not a surprise introduction. The court reasons that the trial court could have found that the state’s notice was reasonable and Castillo failed to show that the ruling fell outside the zone of reasonable disagreement. Consequently, the court rejects Castillo’s grounds for appeal and affirms his convictions. OPINION:Garza, J.; Yanez, Castillo and Garza, JJ.

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