Gilberto Castillo v. the State of Texas

Opinion issued February 5, 2026

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-24-00042-CR
———————————
GILBERTO CASTILLO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Case No. 22-CR-3892

MEMORANDUM OPINION

Appellant Gilberto Castillo appeals from his conviction for the third-degree

felony of assault with bodily injury with a prior conviction. In one issue, Castillo

argues he suffered egregious harm because the jury charge referred to the use of
self-defense as defending against deadly force and erroneously omitted information

about the burden of proof in a self-defense instruction.

We affirm the trial court’s judgment as modified.

Background1

Appellant Gilberto Castillo and Imelda Pena had a “long-term dating

relationship” that began in September 2019. The police had been called to Pena’s

home on prior occasions to assist with a “verbal disturbance” between Castillo and

Pena. According to Pena, Castillo, who lived with her and her children, assaulted

her on “various occasions.” 2

On the night of October 8, 2022, Pena, her children, and Castillo were

planning to watch a movie at Pena’s trailer after dinner. Castillo did not stay to

watch the movie. He left Pena’s trailer to go drinking with a cousin instead.

According to Pena, when Castillo returned to her trailer in the early morning hours

of October 9, Castillo had scrapes on his back, arm, hand, and face. Castillo left the

trailer, but he returned the same day before daybreak. According to Pena, when

Castillo returned to the trailer the second time, he was mad and still intoxicated.

1
Eight witnesses testified during the guilt-innocence phase of trial. We only address
the testimony pertinent to Castillo’s self-defense claim.
2
There was conflicting testimony as to whether Castillo lived fulltime with Pena
when the incident occurred. Castillo testified that he was already married when he
met Pena and when they began to date, he started “leading two lives.”

2
Castillo kicked the trailer door open and began hitting Pena in the face with his

hands.

Pena’s oldest child, A.P., who referred to Castillo as her stepfather, was in

the trailer when the incident occurred. She testified that when Castillo returned to

the trailer the first time the morning of October 9, he looked like he had been in a

fight. He had blood on his face. Castillo told A.P. and her siblings that he had

fought a bear. After everyone went to sleep, Castillo left the trailer again. A.P.

woke up later that same morning when she heard Castillo screaming at Pena.

Castillo was pulling Pena’s hair, hitting her, and cussing at her in the living room.

A.P. threw a picture frame at Castillo to get him to stop. Castillo was trying to drag

Pena outside the trailer by her hair. Pena was crying. Castillo pulled Pena through

the front door of the trailer and down the steps to his car. According to A.P.,

Castillo threw Pena into the driver’s seat of his car. Pena crawled into the back seat

of the car and opened the door to get out. As she tried to get out of the car, Castillo

started to drive off. A.P. testified that Pena got injured because the car door was

open when Castillo started driving off.

On October 9, 2022, at approximately 6 a.m., the Dickinson Police

Department dispatched officers to a domestic violence call at Pena’s trailer.

According to the dispatcher, a fourteen-year-old female caller told the dispatcher

that her mother, Pena, was being assaulted by her stepfather, Castillo. By the time

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police arrived at the scene, Castillo was gone. One of the responding officers

observed Pena’s injuries. Pena’s injuries included road rash to her elbows and

ankle, redness around her right eye, and a possible blow to the head or pulled hair.

The officer later testified that Castillo struck Pena in the face with his hands, pulled

her hair, and pushed her to the ground inside her home. Pena also fell while

holding onto an open car door as Castillo tried to drive away, but police could not

determine whether Pena’s resulting road rash was the result of accidental or

intentional conduct by Castillo.

Later on October 9, Castillo went to the police department to give a

statement. He spoke to the same officer who spoke to Pena earlier in the day.

Castillo told him he had been assaulted by Pena at approximately 3 a.m. that

morning. Although Castillo had injuries to his face and body, the officer did not

find Castillo credible. He testified he did not find it likely that a male would

sustain injuries of that kind when attacked by a female, and the time frame did not

match, given that the disturbance to which police were called was at 6 a.m. Castillo

was ultimately charged with “assault causing bodily injury with prior conviction”

and “failure to stop and give information.”

Castillo testified that the night before the assault, he went to Pena’s trailer to

watch a movie with her and her children. He left and when he returned, Pena began

to scratch him. According to Castillo, the trailer door was not locked and he did not

4
kick it open. He testified that some of his scratches were from an argument with

Pena when he left the trailer the first time. When he left the first time, he also fell

on the stairs to the trailer injuring his back.

Castillo testified that when he tried to leave the trailer the second time, he

and Pena began arguing and she was trying to push him and scratch him again.

Castillo tried to get out of the house and Pena ran to his car, telling him he was not

leaving and screaming at him. According to Castillo, he grabbed Pena by her arm

and got her out of his car so that he could leave. He denied that he dragged Castillo

out of the trailer by the hair or that he hit her with his hand. Castillo testified he

was “just trying to get away, not hurt her.”

The jury convicted Castillo, and the court imposed a sentence of seven

years’ imprisonment. This appeal ensued.

Jury Charge Error

Castillo argues the jury charge contains harmful error because the charge

referred to the use of self-defense as defending against deadly force and omitted

information about the burden of proof in a self-defense instruction.

Applicable Law

It is the trial court's responsibility to deliver to the jury a written charge

“distinctly setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. art

36.14; Arteaga v. State, 521 S.W.3d 329, 334 (Tex. Crim. App. 2017). The purpose

5
of the charge is “to inform the jury of the applicable law and guide them in its

application to the case.” Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.

2007) (citation omitted). A proper jury charge consists of an abstract statement of

the law and the application paragraphs. Alcoser v. State, 596 S.W.3d 320, 332

(Tex. App.—Amarillo 2019) (“[A] jury charge should begin with an abstract

paragraph defining the elements of an offense, or defining significant words or

phrases, followed by an application paragraph that applies that law to the facts of

the particular case.”), rev’d on other grounds, 663 S.W.3d 160 (Tex. Crim. App.

2022). The abstract paragraphs serve as a glossary to help the jury understand the

meaning of concepts and terms used in the application paragraphs of the charge. Id.

at 328. The application paragraphs apply the “pertinent penal law, abstract

definitions, and general legal principles to the particular facts and the indictment

allegations.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). The

charge’s application paragraph, not the abstract portion, authorizes a conviction.

Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012).

Standard of Review

When reviewing a challenge to a jury charge, we engage in a two-step

analysis. We first consider whether error exists in the charge. Kirsch v. State, 357

S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred, we next determine

whether sufficient harm resulted from the error requiring reversal. Id.

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The degree of harm necessary for reversal depends on whether the defendant

properly objected to the error. See id. (“The issue of error preservation is not

relevant until harm is assessed because the degree of harm required for reversal

depends on whether the error was preserved.”) (citing Middleton v. State, 125

S.W.3d 450, 453 (Tex. Crim. App. 2003)). If the defendant properly objected to

the charge, we consider whether “some” harm occurred from the charge error.

Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). When as here, the defendant

fails to object to the charge, we will reverse only if the error resulted in

“egregious” harm. Jordan, 593 S.W.3d at 346 (citing Almanza, 686 S.W.2d at

171). Egregious harm requires a showing that the defendant was “deprived of a fair

and impartial trial.” Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013).

“Egregious harm is a high and difficult standard to meet, and such a determination

must be borne out by the trial record.” Villarreal v. State, 453 S.W.3d 429, 433

(Tex. Crim. App. 2015) (internal quotations omitted). When assessing whether an

appellant suffered egregious harm based on charge error, courts consider (1) the

entire jury charge, (2) the state of the evidence, including the contested issues and

the weight of any probative evidence, (3) the arguments of counsel, and (4) any

other relevant information revealed by the trial record as a whole. Id. (citing

Almanza, 686 S.W.2d at 171). Errors that result in egregious harm are “those that

7
affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly

more persuasive.” Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011);

see also Nava, 415 S.W.3d at 298 (stating egregious harm requires showing

defendant was “deprived of a fair and impartial trial”); TEX. CODE CRIM. PROC. art.

36.19 (stating trial court’s judgment should not be reversed unless record shows

jury charge error was calculated to injure defendant’s rights, or unless record

demonstrates defendant did not have fair and impartial trial).

Discussion

Castillo’s stated appellate issue does not correspond to the arguments he

makes in his appellate brief. In his stated issue, Castillo argues that he

suffered egregious harm from the jury charge because said charge did
not include the correct claim necessary to argue a self-defense claim
by using the language of deadly force. This resulted in the jury being
confused as to whether they had the possibility of not convicting
[him] based off whether [he] had a right to defend himself against
nondeadly force against him.”

(Emphasis in original.) Castillo’s brief does not address this issue, however.

Rather, his brief focuses on his argument that the jury charge impermissibly shifted

the burden of proof on self-defense to Castillo. Because Castillo did not brief his

first issue as stated, the issue is waived. See TEX. R. APP. P. 38.1(i) (stating

appellate briefs “must contain a clear and concise argument for the contentions

made, with appropriate citations to authorities and to the record”); see also Thomas
8
v. State, 312 S.W.3d 732, 738 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d)

(“Appellant has cited no specific facts in support of his authority and no authority

for his argument and therefore has failed to adequately brief this point.”).

In his brief, Castillo argues there was charge error because the jury charge

instructions were “confusing in various respects and did not clearly state the law

regarding self-defense by stating that the defendant did not carry the burden of

proof to prove that []he acted in self-defense.” Citing to the Texas Pattern Jury

Charge section on criminal defenses, Castillo argues the jury should have been

instructed that the defendant is not required to prove self-defense but, rather, the

State is required to prove beyond a reasonable doubt that self-defense does not

apply to the defendant’s conduct.

He argues that had the language from the Pattern Jury Charge been included

in the charge, “it would have been clear that the State—not Appellant—bore the

burden of proof and what exactly was to be proven.”

To the extent Castillo argues that the trial court was required to use the

language in the Patter Jury Charge, we reject his argument. It is well-settled that

criminal jury charges and instructions need not include the same verbiage as in the

pattern jury charges. See Tuft v. State, No. 14-22-00066-CR, 2023 WL 5622868, at

*5 (Tex. App.—Houston [14th Dist.] Aug. 31, 2023, pet. ref’d) (mem. op., not

designated for publication) (holding failure to “include all the instructions

9
recommended by the Committee on Pattern Jury Charges does not automatically

compel the conclusion that the trial court erred”); Campbell v. State, No. 01-21-

00332-CR, 2022 WL 3648891, at *12 (Tex. App.—Houston [1st Dist.] Aug. 25,

2022, pet. ref’d) (mem. op., not designated for publication) (holding no error when

jury instructions “provide[d] substantively the same information as the burden-of-

proof language contained in the Texas Pattern Jury Charge instruction for self-

defense”).

And even assuming, without deciding, that the trial court erred by not

including the Pattern Jury Charge instruction Castillo requested, Castillo does not

prevail on this issue because he did not establish he suffered egregious harm as a

result of the complained-of charge error.

Egregious Harm Analysis

Assuming without deciding Castillo established charge error, we cannot

reverse unless the error resulted in egregious harm. We apply the Almanza factors

to determine whether Castillo sustained egregious harm as a result of the alleged

error. We review the whole record for actual, not just theoretical harm, to the

accused. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016) (citing

Arline v. State, 721 S.W.2d 348, 351–52 (Tex. Crim. App. 1986)).

10
Castillo does not address the Almanza factors in his brief.3

1. Jury Charge

The first Almanza factor requires that we review the trial court’s charge in its

entirety. See Villarreal, 453 S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171).

The abstract portion of the charge correctly defined the elements of the

offense of Assault Family/Household Member with Previous Conviction, and

instructed the jury that Castillo is presumed to be innocent unless each element of

the offense is proved beyond a reasonable doubt, that the State had the burden to

prove each element of the offense beyond a reasonable doubt, and if the State

failed to do so, the jury must acquit Castillo. And there was a lengthy instruction

section regarding self-defense. As noted, the jury charge was not deficient merely

because it failed to quote the Pattern Jury Charge with respect to the burden of

proof to prove self-defense. This factor weighs against a finding of egregious

harm.

3
Castillo acknowledges that to establish egregious harm, reviewing courts consider
the Almanza factors. But rather than discussing any of the factors in his brief, he
merely concludes in the “Conclusion” paragraph of his brief that in “this instance,
Appellant suffered egregious harm because the jury charge failed to sufficiency
explain to the jury the concept of self-defense and further failed to explain to the
jury that it was the prosecution’s burden to prove that Appellant did not act in self-
defense.”
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2. State of the Evidence

The second Almanza factor requires us to consider the state of the evidence,

including the contested issues and weight of probative evidence. See Villarreal,

453 S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171). “[T]he mere existence of

conflicting testimony surrounding a contested issue does not necessarily trigger a

finding of egregious harm.” Villarreal, 453 S.W.3d at 436 (citing Olivas v. State,

202 S.W.3d 37, 148 (Tex. Crim. App. 2006)).

Although Castillo testified that Pena scratched him, pushed him, and yelled

at him, there is no evidence of Castillo’s state of mind at the time he allegedly

acted in self-defense—that is, that he had a subjective belief that the force he used

against Pena was “immediately necessary to protect himself against [Pena’s] use or

attempted use of unlawful force.” See Lozano v. State, 636 S.W.3d 25, 32 (Tex.

Crim. App. 2021) (citing TEX. PENAL CODE § 9.31(a)). In asserting self-defense,

“[a] defendant must subjectively believe that another person used or attempted to

use unlawful force . . . or deadly force . . . against the defendant and that the

defendant’s use of unlawful force or deadly force in response was immediately

necessary.” Id. at 32 (citing Semaire v. State, 612 S.W.2d 528, 530 (Tex. Crim.

App. 1980)). And the defendant’s subjective belief must be “reasonable”—that is,

it must be a belief held by an “ordinary and prudent man in the same circumstances

as the actor.” Id. (citing TEX. PENAL CODE § 1.01(a)(42)). “Evidence of a violent

12
act against the defendant does not raise an inference of self-defense if the record is

silent about the defendant’s subjective state of mind at the time of the [alleged self-

defensive violence].” Carriere v. State, No. 01-23-00071-CR, 2024 WL 1446931,

at *6 (Tex. App.—Houston [1st Dist.] Apr. 4, 2024, pet. ref’d) (mem. op., not

designation for publication) (citing Lozano, 636 S.W.3d at 34).

Significantly, Castillo never testified that he injured Pena while acting in

self-defense. On the contrary, he testified that he did not injure Pena. For example,

he testified that as he tried to leave the trailer the second time, he and Pena were

arguing, and she was trying to push him and scratch him. He testified that he tried

to leave the trailer, but Pena ran to his car, telling him he was not leaving and

screaming at him. According to Castillo, he grabbed Pena by the arm and got her

out of his car so he could leave. He denied dragging Pena out of the trailer by the

hair or hitting her with his hand. He testified that he was “just trying to get away,

not hurt her.”

Castillo’s testimony that he did not hurt Pena is inconsistent with a claim of

self-defense. “Self-defense is a confession-and-avoidance defense requiring the

defendant to admit to his otherwise illegal conduct. He cannot both invoke self-

defense and flatly deny the charged conduct.” Jordan, 593 S.W.3d at 343 (citing

Juarez v. State, 308 S.W.3d 398, 404, 406 (Tex. Crim. App. 2010)). See also

Rodriguez v. State, 629 S.W.3d 229, 231 (Tex. Crim. App. 2021) (“Confession and

13
avoidance is a judicially imposed requirement that requires defendants who assert a

justification defense to admit, or at a minimum to not deny, the charged conduct.”).

We thus conclude that the second Almanza factor weighs against a finding

that Castillo suffered egregious harm. See Lozano, 636 S.W.3d at 34 (analyzing

second Almanza factor and concluding that because there was no evidence of

defendant’s subjective state of mind at time force was used, there was no egregious

harm resulting from complained-of charge error).

3. Arguments of Counsel

The third Almanza factor requires us to consider the arguments of counsel.

See Villarreal, 453 S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171). Neither

party addressed self-defense in its opening argument. During closing arguments,

the State argued that “self-defense [was] not at play here. [Castillo] didn’t admit

that he hurt [Pena] at all. And even if you think that there was a [self-defense]

situation, [Pena’s] action towards [Castillo] would have had to be unlawful. That’s

not what the testimony was.” Castillo’s counsel did not argue self-defense in his

closing argument.

We conclude this factor weighs against finding that Castillo suffered

egregious harm. See Arevalo v. State, 675 S.W.3d 833, 855 (Tex. App.—Eastland

2023, no pet.) (stating factor requires reviewing court to consider whether

14
statements made by State, defense counsel, or trial court “exacerbated or

ameliorated” complained-of charge error).

4. Other Relevant Evidence

The fourth Almanza factor requires us to consider any other relevant

information revealed by the record of the trial as a whole. See Villarreal, 453

S.W.3d at 433 (citing Almanza, 686 S.W.2d at 171); Gelinas v. State, 398 S.W.3d

703, 707 (Tex. Crim. App. 2013) (describing fourth Almanza factor as “broad

‘catch-all’ category”).4 During voir dire, the State briefly discussed self-defense,

stating

[A] person is justified in using force against another when and to the
degree that he or she reasonably believes the force is immediately
necessary to protect himself or herself against the other’s use or
attempted use of unlawful force.

The defense stated said only with respect to self-defense during voir dire that

“when they are talking about self-defense, that’s use of force; but it’s lawful

because it’s justified by the circumstance.”

The record further reflects that the jury did not inquire or submit notes or

other form of communication to the trial court regarding the instructions on self-

defense. See Arevalo, 675 S.W.3d at 856 (stating “it is unlikely that the jury was

4
For example, in our analysis of the fourth factor, we may consider whether the
jury rejected one of multiple counts or requested clarification during deliberations.
See Smith v. State, 515 S.W.3d 423, 431 (Tex. App.—Houston [14th Dist.] 2017,
pet. ref’d).
15
influenced or confused by the trial court’s instructions” when jury did not inquire

about complained-of definition). Even if the State’s self-defense comments during

voir dire may have exacerbated the harmfulness of any charge error, the jury’s lack

of questions about the charge—together with the evidence supporting Castillo’s

conviction and the lack of self-defense discussion by Castillo’s counsel in opening

statements and closing arguments—indicate that the jury likely was not confused

by or influenced by the erroneous charge.

Based on this record and considering all four Almanza factors, we conclude

the record as a whole does not reflect that any error affected “the very basis of the

case, deprive[d] [Castillo] of a valuable right, vitally affect[ed] the defensive

theory, or ma[d]e a case for conviction clearly and significantly more persuasive.”

Taylor, 332 S.W.3d at 490; see also Nava, 415 S.W.3d at 298 (stating egregious

harm requires showing defendant was “deprived of a fair and impartial trial”). We

thus conclude Castillo did not suffer egregious harm resulting from any alleged

jury charge error, and any harm was likely theoretical. See Villarreal, 453 S.W.3d

at 433; see generally Alcoser v. State, 663 S.W.3d 160, 171 (Tex. Crim. App.

2022) (stating Almanza forbids “the windfall of a new trial based on only

theoretical harm”).

We overrule Castillo’s sole issue.

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Modification of the Judgment

Although neither party has requested that we do so, we sua sponte modify

the trial court’s written judgment to reflect the trial court, and not the jury, assessed

Castillo’s punishment. See St. Julian v. State, 132 S.W.3d 512, 517 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d) (modifying judgment sua sponte to correct

clerical error in judgment). “An appellate court may correct and reform a trial court

judgment to make the judgment congruent with the record.” Id. (citing Nolan v.

State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.)). This

Court has the authority “to modify an incorrect judgment when we have the

necessary data and information to do so.” Harris v. State, No. 01-10-00319-CR,

2011 WL 2089684, at *5 (Tex. App.—Houston [1st Dist.] May 19, 2011, pet.

ref’d) (mem. op., not designated for publication) (citing TEX. R. APP. P. 43.2(b));

see also Mungia v. State, No. 05-06-01254-CR, 2008 WL 2406140, at *3 (Tex.

App.—Dallas June 16, 2008, no pet.) (mem. op., not designated for publication)

(modifying judgment to reflect trial court, rather than jury, assessed punishment).

Conclusion

We modify the judgment to reflect that the trial court assessed punishment

rather than the jury. We affirm the trial court’s judgment as modified.

17
Veronica Rivas-Molloy
Justice

Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.

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

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